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OSHA Law Blog

State Plans Slowly Adopt New Federal OSHA Reporting Requirements

Beginning on January 1, 2015, employers in states with Federal OSHA jurisdiction were required to start reporting to OSHA work-related fatalities (that occur within 30 days of the work-related incident) within 8 hours of learning of the fatality, work-related in-patient hospitalizations, amputations and losses of an eye within 24 hours of the work-related incident.

However, those states that operate their own state OSHA program have until January 1, 2016 to implement the new requirements. To date, only four states have adopted and put into effect the new federal OSHA reporting requirements. These include:

  • North Carolina – effective January 1, 2015
  • Iowa – effective January 14, 2015
  • Tennessee – effective February 24, 2015
  • Indiana – effective March 1, 2015

Some other state plans have indicated that they are currently in the proposed rulemaking process and intend to adopt the new federal requirements relatively shortly. These include:

  • Minnesota – Agency’s intention is to adopt the new requirements by March 18, 2015 with an effective date of October 1, 2015.
  • New Mexico – A public hearing on the proposed rule to adopt the new reporting requirements is scheduled for May 15, 2015.
  • Oregon – The agency currently has an open comment period until March 11, 2015 and anticipates adopting the new requirements in March with an effective date of January 1, 2016.
  • Virginia – The bill to adopt the new requirements was submitted to Governor McAuliffe on February 26, 2015 for signature with an action deadline of March 30, 2015. The effective date is unclear.
  • Washington – A public hearing on the proposed rule to adopt the new reporting requirements is scheduled for March 27, 2015 and the agency intends to adopt the new requirements on May 5, 2015. However, the effective date is unclear.

Arizona has submitted a request to Governor Ducey to proceed with proposed rulemaking adopting the new reporting requirements and is currently waiting for a response from the Governor’s office. The remaining state plans are currently evaluating the new federal reporting requirements but have not indicated when they will adopt and implement them. To ensure compliance, employers are encouraged to continue to monitor the various state plans progress in adopting these new requirements.

OSHA Internal Memo Outlines Triage Process for Reported Fatalities & Injuries

Effective January 1, 2015 employers in states with Federal OSHA jurisdiction must report to OSHA all work-related fatalities (that occurs within 30 days of the work-related incident) within 8 hours of learning of the fatality, all work-related in-patient hospitalizations, all amputations and all losses of an eye within 24 hours of the work-related incident.

In order to manage the influx of new reported injuries, OSHA’s Deputy Assistant Secretary, Dorothy Dougherty issued an internal memo to all Regional Administrators on December 24, 2014 outlining interim enforcement procedures for the new reporting requirements.

This twenty some page policy provides Regional and Area offices with instructions for the intake of reports, the input of reports to OSHA’s online database, and the triage of reports that will be inspected and investigated.

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OSHA Calls Special ACCSH Meeting on Crane Operator Qualification Proposed Rule

The Advisory Committee on Construction Safety and Health (“ACCSH”) is an advisory body that provides advice and assistance to OSHA regarding construction standards. There are 15 members of this advisory committee comprising representatives for employers, employees, federal, state and public representatives. ACCSH generally meets two to four times a year.

ACCSH recently met in December 2014. During this meeting Mr. Maddux, OSHA’s Director for the Directorate of Construction indicated that OSHA anticipated presenting ACCSH with draft regulatory text regarding crane operator qualification/certification at the spring ACCSH meeting.  The draft regulatory text is intended to address the following: (1) whether certification of an operator means the operator is qualified to operate the crane or whether the employer must make a separate and independent determination that the operator is qualified, (2) whether certification must address both the type and capacity of the crane the operator is being certified to operate, and (3) provide more explicit training requirements.

OSHA has called a special meeting for ACCSH members to “consider a proposed rule to revised OSHA’s crane operator qualification requirement in the Cranes and Derricks in Construction standard.” Based on this notice for a special meeting it appears that the Agency has a draft proposed rule that it will present to ACCSH for consideration.

According to the Federal Register Notice the tentative agenda for the meeting will include a presentation on OSHA’s Proposed Rule to revise the Crane Operator Qualification requirement in the Cranes and Derricks in Construction standards (29 CFR Part 1926, Subpart CC) and discussion and consideration by ACCSH of OSHA’s proposed rule revisions.

The meeting is open to the public and public comments are permitted. The meeting will be held in Washington D.C. at the U.S. Department of Labor from 9 a.m. to 5 p.m., Tuesday, March 31, 2015 and from 9 a.m. to 1 p.m., Wednesday, April 1, 2015.

A copy of the Federal Register notice can be found online.

 

 

 

The Amendments to the Heat Illness Prevention Plan

Written by Alka Ramchandani

On February 20, 2015, the California Occupational Safety and Health Standards Board voted on new changes to the Heat Illness Prevention regulation. The Standards Board voted 5-1 to approve the proposed amended statute. Marley Heart, Executive Director of the Standards Board, requested the Office of Administrative Review to allow for an early effective date. The Office of Administrative Law is responsible for reviewing administrative regulations proposed by the Standards Board to ensure that they are compliant with the California’s Administrative Procedure Act. The Office will transmit this amendment to the Secretary of State for publishing in the California Code of Regulations. We expect that the new regulation will be rolled out at the beginning of the heat season, in May of this year.

Employers should promptly update their heat illness prevention plans and train their employees for compliance with the new regulations. What follows below is a quick summary of the amendment to help you revise your plan and get ready for this year’s heat season.

Potable Water Requirements

The heat illness regulation previously stated that employers had to provide employees with access to potable drinking water that was clean and maintained through individual dispensers, faucets, or drinking fountains. The Division of Occupational Safety and Health previously cited employers for not providing continuous water to employees and for failing to ensure that the employees have properly marked dispensable cups or bottles to obtain clean water. The regulation also provided that where the employer cannot otherwise continuously supply or replenish employees’ water (e.g. with a mobile crew that is located off-site), that it shall provide water in sufficient quantity at the beginning of the shift. The employer must provide each employee with a minimum of one quart of water per hour for the entire shift. The amendment now also states that the water must be fresh, pure, suitably cool, and provided free of charge to employees. Additionally, the water must be located as close as practicable to the areas where employees are working, unless the employer can demonstrate infeasibility.

Shade Requirements

Prior to the amendment, employers were obligated to provide shade to at least 25% of the employees on shade only when the temperature exceeded 85 degrees.

Now the amendment requires that the employer provide shade when the temperature exceeds 80 degrees and so that it can accommodate the total number of employees on recovery or rest periods. The employer must provide enough shade during meal breaks to accommodate the total number of employees that remain outside. In addition, the shaded area has to be located as close as practicable to the areas that employees are working.

Preventative Cool-Down Rest Periods

The heat illness regulation requires employers to allow and encourage employees to take a minimum of five-minutes for a cool-down rest period if they feel they needed to protect themselves from overheating. Now in addition to allowing and encouraging employees to take cool-down rest periods, employers are required to monitor and ask employees taking rest periods whether he or she is experiencing symptoms of heat illness. Employers are to encourage employees taking a rest period to remain in the shade. Employers are prohibited from ordering employees to work until signs or symptoms of heat illness have been abated.

High-Heat Procedures

Employers have to implement high-heat procedures when the temperature equals or exceeds 95 degrees Fahrenheit. Employers have to ensure that there is effective communication between supervisors and employees. Employers are also obligated to observe employees for alertness and signs or symptoms of heat illness.

In addition to these procedures, the amendment requires that employers assertively monitor employees by instituting: a one supervisor to twenty or fewer employee ratio, a mandatory buddy system, a regular communication through electronic device routine with each employee, or another effective means of communication. Employers are also obligated to designate one or more employees on each worksite as authorized individuals for emergency medical services. If there is no designee on shift, employers must instruct other employees to call for emergency services when required.

The amendment requires pre-shift meetings that must take place before the commencement of work on each shift during high heat conditions. The shift meetings should: review high heat procedures, encourage employees to drink plenty of water, and remind employees of their right to take a cool-down rest break when needed.

Agricultural employers now have additional requirements such as providing employees with ten minute cool down rest periods every two hours. The amendment also clarifies cool-down rest breaks and their impact on the mandatory meal and rest breaks required under the California Industrial Wage Orders and California Labor Code Section 226.7.

Emergency Preparedness Requirements

High-Heat emergency response preparedness requirements now must include: (1) an effective communication with employees by voice, observation, or electronic means; (2) an effective response with first aid measures; and (3) procedures for contacting emergency responders to help stricken workers.

Acclimatization

Employers are to assign supervisors to closely observe and monitor employees during a heat wave. A heat wave is defined as temperatures over 80 degrees Fahrenheit or anytime the temperature is ten degrees higher than the average high daily temperature in the preceding five days. Employers must closely monitor a new employee for the first 14 days of his or her employment in a high heat area.

Training

In addition to all of the previous training requirements, the amendment now specifically requires employers to train employees in: (1) the employer’s responsibility to provide water, shade, cool-down rests, and access to first aid; (2) the employees’ right to exercise their rights under this standard without retaliation; (3) first aid and emergency response procedures; and (4) concepts and methods of acclimatization.

Heat Illness Prevention Plan

The amendment increased the requirements of heat illness prevention plans. The employer must establish, implement, and maintain an effective heat illness prevention plan in both English and in any language understood by the majority of the employees. The plan must be made available to employees at the worksite and to representatives of the Division upon request. The Heat Illness Prevention Plan may be included as part of the employer’s Illness and Injury Prevention Program but must specifically include procedures for the provision of water and access to shade, high heat procedures, emergency response procedures, and acclimatization methods and procedures.

***

The voluminous changes to the heat regulation are sure to create a large wave of citations this spring and summer. There are tips that you can follow to protect your companies.

10 Tips for Compliance:

  1. Review your heat illness and prevention plan and amend it so that it reflects the new requirements including potable water requirements, shade requirements, preventative cool-down rest periods, high heat procedures, acclimation, and training policies and procedures.
  2. Review your employee handbook for cool-down rest periods and make sure it is consistent with the new regulations.
  3. Review or create new policies and procedures for monitoring employees taking cool-down rest periods.
  4. Review or create new plans to monitor employees in high heat conditions by instituting a one supervisor to twenty or fewer employees ratio, a mandatory buddy system, or a consistent practice for supervisors to check in with employees.
  5. Review your emergency preparedness plan and make sure it has a designed individual who can call for emergency services when needed.
  6. Make sure your emergency preparedness plan includes an effective communication with employees by voice, observation, or electronic means, an effective response with first aid measures, and procedures for contacting emergency responders to help stricken workers.
  7. Closely monitor temperature changes to ensure that you are following the amendment’s acclimatization requirements.
  8. Conduct a site inspection at each of your California facilities to ensure that shade and water is being provided as close as practicable to the areas employees are working.
  9. Train your employees and supervisors on the revised heat illness plan and procedures, cool-down rest breaks, and monitoring procedures. Retrain your employees on how to prevent heat illness.
  10. Call your attorney for advice on how to revise your plan and procedures.

You can read the text of the amendment at https://www.dir.ca.gov/oshsb/documents/Heat_illness_prevention_txtbrdconsider.pdf

OSHA Extends 1910.269 & Subpart V Compliance Dates

Pursuant to a settlement agreement reached with the Edison Electric Institute (“EEI”), the Utility Line-Clearance Coalition (“ULCC”) and the Tree Care Industry Association (“TCIA”), OSHA has agreed to extend several compliance dates for the new standards on electrical power generation, transmission and distribution installations for both general industry and construction.

On April 11, 2014 OSHA promulgated final standards updating the general industry and construction standards for work on electrical power generation, transmission and distribution installations – 29 C.F.R. § 1910.269 and 29 C.F.R. Part 1926, Subpart V. The final standards contain a delayed effective date for some provisions until April 1, 2015, such as the requirement for fall protection for qualified employees changing locations on poles and similar structures and application of the new requirements for minimum approach distances. Other requirements were set to become effective on July 10, 2014.

In a series of enforcement memorandums issued to Regional Administrators, OSHA instructed Regional Administrators not to issue citations from July 10, 2014 through February 17, 2015, to employers under either the updated 1910.269 or 1926, Subpart V standard if they were in compliance with the old requirements of § 1910.269. Therefore, employers in both construction and operation and maintenance of generation, transmission and distribution (general industry and construction) had the option of complying with the new updated standards or follow the old requirements of § 1910.269 through February 17, 2015.

On February 18, 2015 the final standards under 29 C.F.R. § 1910.269 and 29 C.F.R. Part 1926, Subpart V became effective. Pursuant to the settlement agreement OSHA agreed to delay certain enforcement dates as follows:

Information Transfer

  • After April 30, 2015 host employers must provide contract employers with the required information in 1910.269(a)(3) and 1926.950(c) with the exception of information on maximum switching-transient voltages under 1910.269(a)(3)(i)(A) and 1926.950(c)(1)(i).
  • Until June 30, 2015 no citations will be issued to host employers or contract employers under the information-transfer provisions at 1910.269(a)(3) and 1926.950(c)

Job Briefing –

  • Compliance with 1910.269(c)(1)(i) and 1926.952(a)(1) is extended until April 30, 2015. These provisions require employers to provide the employee in charge of the job with all available information that relates to the determination of existing characteristics and conditions

Minimum Approach Distances –

  • Compliance with 1910.269(l)(3)(ii) and 1926.960(c)(1)(ii), which require employers to determine the maximum anticipated per-unit transient overvoltage is extended until January 31, 2016

Estimates of Available Heat Energy –

  • Compliance with 1910.269(l)(8)(ii) and 1926.960(g)(2), which require employers to make a reasonable estimate of the incident heat energy exposures faced by each employee exposed to electric arc hazards, is extended until March 31, 2015

Flame Resistant Clothing –

  • Compliance with 1910.269(l)(8)(iv)(A) through (l)(8)(iv)(C) and 1926.960(g)(4)(i) through (g)(4)(iii) is extended until April 1, 2015 for flame-resistant pants provided employees are wearing 11-ounce or heavier weight cotton pants

Arc-rated Protection –

  • Compliance with 1910.269(l)(8)(v) and 1926.960(g)(5) is extended until August 31, 2015 to provide protective clothing or equipment rated higher than 8 cal/cm2.

In addition to the extensions provided above, the settlement agreement contained additional enforcement guidance for employers. OSHA issued a set of Questions and Answers on the final rules addressing various provisions related to information transfer, minimum approach distances, fall protection, and line-clearance tree trimming. Also as part of the settlement agreement, OSHA issued a memorandum to OSHA field offices regarding enforcement of some of the fall protection requirements and a memorandum clarifying the applicability of 1910.269 to line-clearance tree-trimming.

A copy of these documents can be found online at OSHA’s website.

 

OSHA and NIOSH issue Hazard Alert on Worker Exposure to Crystalline Silica

OSHA first announced its proposed rule on Occupational Exposure to Crystalline Silica in August 2013 and concluded public hearings on the proposed rule in April 2014.  In spite of this ongoing intense rulemaking on occupational exposure to crystalline silica, OSHA and NIOSH published a Hazard Alert on Worker Exposure to Crystalline Silica during Countertop Manufacturing, Finishing and Installation last week.  This marks the first Hazard Alert on silica exposure since OSHA issued the alert for Worker Exposure to Silica during Hydraulic Fracturing in June 2012.

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Workplace Safety & Health Weekly Update

The latest issue of our weekly Workplace Safety and Health newsletter is available for viewing and contains the following articles:

OSHA, MSHA Proposed Budgets Emphasize Enforcement. Enforcement would be strengthened at OSHA and MSHA under the President’s proposed fiscal year 2016 budget.

MSHA Chief Heralds 5 Years of Progress in Mine Safety. Citing recent positive changes in safety, MSHA chief Joe Main said the foundation is being laid for better safety performance and an improved safety culture in mining.

Click here to download the newsletter and read the full articles.

To sign up to receive the weekly newsletter, click here and fill out the form, then scroll down and check the box next to “Workplace Safety and Health Weekly Update,” which is the last item in the “Newsletters by Topic” section.  To receive all of Jackson Lewis’ workplace safety and health related news, scroll down even farther and check the box next to “Workplace Safety and Health” under the “Areas of Interest” section.

Jordan Barab Gives Regulatory Update at SBA Roundtable Meeting

Recently, Jordan Barab, Deputy Assistant Secretary of Labor for the U.S. Occupational Safety and Health Administration spoke at the U.S. Small Business Labor Safety (OSHA/MSHA) Roundtable meeting held in Washington, DC. Mr. Barab provided an update on OSHA’s regulatory agenda and rulemaking activities that would likely have an impact on small businesses. Mr. Barab divided the regulatory agenda into rulemaking activities that are pending final agency action, are in the proposal or early rulemaking stage, or are reserved for long-term agency action. Those rulemakings that are pending final agency action are at the top of OSHA’s agenda and are being given significant priority.

According to Mr. Barab the following rules are pending final agency action:

  • Silica
  • Subpart D: Walking Working Surfaces and Personal Fall Protection Systems (Slips, Trips, and Fall Prevention).
  • Improve Tracking of Workplace Injuries and Illnesses (also known informally as Electronic Recordkeeping Rule)
  • Confined Space in Construction

Regarding the silica rule, Mr. Barab indicated that the standard is “innovative but OSHA is trying to make it user friendly.” OSHA is currently reviewing public comments in response to the proposed rule issued on September 12, 2013 and public hearings held March 18, 2014 through April 4, 2014.

During the meeting, Mr. Barab was asked whether the final rule for Subpart D, Walking Working Surfaces and Personal Fall Protection Systems would cover rolling stock or whether a separate rule regarding fall protection from rolling stock would be initiated. In response, Mr. Barab indicated that it is unlikely that the final rule for Subpart D would address the issue of fall protection and rolling stock.

Mr. Barab noted that of the four final rulemakings, Confined Space in Construction would likely be released first and that the final standard generally aligns with the general industry confined space standard. This is consistent with statements that Dr. David Michaels recently made to ACCOSH. OSHA believes that aligning the confined space in construction standard with the general industry confined space standard will be more appealing to employers given this is a standard they currently implement.

Mr. Barab noted that the following rules are in the proposal stage:

  • Beryllium
  • Clarification of Continuing Obligation to Maintain Records
  • Crane Operator Certification
  • Standards Improvement Process

In addition to these rulemakings, OSHA has started the early stages of rulemaking to revise the PSM standard in response to the President’s Executive Order. According to Mr. Barab, OSHA has committed to conducting a Small Business Advocacy Review (SBAR) panel by May 28, 2015. Under the Small Business Regulatory Enforcement Fairness Act, OSHA must hold a SBAR panel before publishing a proposed rule with an Initial Regulatory Flexibility Analysis. This panel consists of small business representatives who are allowed an opportunity to provide recommendations on regulatory alternatives in an effort to reduce the burden on small businesses.

Other rulemakings that are currently in the early stages include Communication Towers and updating existing permissible exposure limits (PELs). OSHA is preparing a Request for Information (RFI) for Communication Towers and issued one for Chemical Management and Permissible Exposure Limits (PELs) on October 10, 2014. Mr. Barab mentioned that the Agency is currently considering whether to extend the deadline for providing information in response to this RFI. Currently the deadline for submission of information is April 8, 2015. Mr. Barab did not give a timeframe for a possible extension.

As for long term agency action, Mr. Barab discussed OSHA’s continued desire to promulgate an Injury and Illness Prevention Program (I2P2) standard. Mr. Barab noted that ultimately the promulgation of such a standard “involved more work than the agency initially anticipated; however, it is not a standard the agency is dropping.” Mr. Barab went on to state that currently OSHA is looking at updating existing guidance documents relating to injury and illness prevention programs. The current guidance, Safety and Health Program Management Guidelines, which was issued in 1989 provides voluntary guidelines on safety and health management practices for employers. Mr. Barab also noted that combustible dust and backover injuries remain long-term agency goals.

In sum, OSHA continues to move forward with significant rulemakings and shows no signs of slowing down during these next two years of this Administration.

Workplace Safety & Health Weekly Update

The latest issue of our weekly Workplace Safety and Health newsletter is available for viewing and contains the following articles:

Court Holds MSHA Has Jurisdiction over Coal Blending Operation. MSHA’s jurisdiction extends to a Virginia coal blending operation, the U.S. Court of Appeals for the Fourth Circuit, in Richmond, has ruled, rejecting a company’s argument that the Mine Act covers only coal mine operators. Power Fuels, LLC v. Federal Mine Safety & Health, No. 14-1450 (4th Cir. Jan. 27, 2015).

DOL Seeks Public Input on Regulations. The Department of Labor is turning to the public once again for suggestions on which of its existing regulations administered department-wide should be revised or repealed.

Click here to download the newsletter and read the full articles.

To sign up to receive the weekly newsletter, click here and fill out the form, then scroll down and check the box next to “Workplace Safety and Health Weekly Update,” which is the last item in the “Newsletters by Topic” section.  To receive all of Jackson Lewis’ workplace safety and health related news, scroll down even farther and check the box next to “Workplace Safety and Health” under the “Areas of Interest” section.

 

Unions Urge OSHRC to Change Procedural Rules

In a January 23, 2015 letter to the U.S. Occupational Safety and Health Review Commission (“Review Commission” or “OSHRC”), the agency that adjudicates contested OSHA citations, several unions, including the National Council for Occupational Safety and Health (National COSH), North America’s Building Trades Unions (Building Trades), Change to Win and the United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union (Steelworkers) petitioned the Review Commission to amend its procedural regulations.  These four entities petitioned the Review Commission to amend various procedural regulations, including amending the definition of “affected employee,” clarify that employees may select any person as their representative and narrow the scope of confidential information during settlement proceedings. According to the petition, “[e]ach of the suggested changes would enhance opportunities for employee participating in OSHRC proceedings.”

Employees currently have several abilities to participate in Review Commission proceedings.  Under current procedural regulations, both authorized employee representatives, employees of the cited employer represented by a labor organization, and affected employees, employees of the cited employer may elect party status. 29 C.F.R. § 2200.20.  So current regulations allow both union represented employees and non-union employees of the cited employer to participate in proceedings. Further, similar to federal and state courts, non-parties, such as unions without a collective bargaining agreement with the cited employer, may petition the Review Commission for leave to “intervene” or otherwise participate in the proceedings without permission from the parties to the case.  29 C.F.R. § 2200.21.

In its petition, the unions allege that “employees do not exercise the rights they have been given under the OSH Act….One reason employees often do not exercise their right to participate in OSHRC proceedings is that the Commission’s procedural rules, at least the way they have been applied, create unreasonable obstacles to full employee participation.”

In an effort to address these “obstacles” the petition requests the Review Commission to redefine the definition of “affected employee.”  Rather than limit the affected employee to the cited employer, the petition suggests that an ““affected employee” should be any employee who performs work at the site.”  Therefore, any employee at a multi-employer worksite could choose to participate in the proceedings even if the citations do not pertain to his/her employer.

Further, the petition requests that the Review Commission clarify that employees may select any person as their representative.  It is unclear from the petition what needs to be clarified given that the current regulations allow parties to proceedings to be represented by an attorney “or through another representative who is not an attorney.” 29 C.F.R. § 2200.22.

Lastly, the petition urges the Review Commission to “narrow the scope of confidentiality during settlement proceedings.”  The petition suggests that the confidentiality of information presented during settlement proceedings is too broad and essentially prohibits employees who are a party to a proceeding from “communicating with the public in their efforts to improve their working conditions.” Under current procedural regulations, “all statements made and information presented during the course of settlement proceedings…shall be regarded as confidential and shall not be divulged outside of these proceedings.”  29 C.F.R. § 2200.120(d)(3).  Confidentiality of settlement proceedings encourages all parties to engage in open and free discussions about the merits of the case as well as abatement for the alleged citations.

There has been no indication from the Review Commission how, if at all, the Agency will respond to the petition.