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OSHA Law Blog

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:

Coal Companies’ Constitutional Case against MSHA Employees Fails. A district court has rejected a lawsuit brought by several Kentucky coal companies to recover damages against MSHA employees following their refusal to allow the operator to recover mining equipment before it was ruined by flooding.

OSHA Moves to Cut Whistleblower Claim Settlement Time. Looking to shorten from months to weeks the time needed to settle whistleblower complaints, OSHA is expanding use of an alternative dispute resolution process that has been judged a success in two of its regions.

Ask a Jackson Lewis Attorney. Q: Our offer letters state that newly-hired employees must undergo a 90-day “probationary” period, during which they can be terminated for any reason or no reason. We went to a seminar and learned this language is not recommended. What’s wrong with this provision?

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.

OSHA to Hold Informal Hearing Regarding Crane Operator Certification

OSHA’s standard, 29 C.F.R. § 1926.1427, which sets out operator qualification and certification requirements for cranes used in the construction industry is currently set to take effect on November 10, 2014.  However, after significant concerns among stakeholders regarding these requirements, in February, OSHA proposed a three-year extension to the operator certification deadline and requested public comment on or before March 12, 2014.

OSHA proposed this extension, in part, due to issues pertaining to the requirements in the standard addressing crane operator
certification that arose shortly after OSHA issued the final rule. After the final standard was issued, OSHA took the position that an operator is qualified to operate a particular piece of equipment if the operator is certified for that type and capacity of equipment or for higher-capacity equipment of that type. Therefore, an operator certified to operate a 100-ton hydraulic crane may operate a 50-ton hydraulic crane but not a 200-ton hydraulic crane. OSHA’s interpretation raised concerns for many stakeholders who believe that certification should be limited to the type of crane, not the capacity.

OSHA received over 60 comments in response to its request for public comment with one submission from Crane Institute Certification requesting that OSHA hold a public hearing.

OSHA has now announced that it will hold an informal public hearing on Monday, May 19, 2014 at 9:30 a.m. in the auditorium of the U.S. Department of Labor at 200 Constitution Avenue, N.W., Washington, D.C. 20210.

Individuals who wish to testify at the informal public hearing must submit a notice of intention to appear by April 25, 2014.  Individuals interested in speaking can submit a notice of intention to appear electronically at http://www.regulations.gov and submitting the request to Docket ID-OSHA-2007-0066.  Additionally, notices can be faxed to the OSHA Docket Office at 202-693-1648.

Additional information regarding the informal public hearing can be found online.

https://www.federalregister.gov/articles/2014/04/15/2014-08512/cranes-and-derricks-in-construction-operator-certification?utm_campaign=subscription+mailing+list&utm_medium=email&utm_source=federalregister.gov

 

OSHA Final Rules: Electric Power Generation, Transmission, 29 C.F.R. § 1910.269 (Operations and Maintenance) and 29 C.F.R. Part 1926, Subpart V (Construction)

Background

On June 15, 2005, OSHA proposed to update its existing standards on Electric Power Generation, Transmission, 29 C.F.R. § 1910.269 (Operations and Maintenance) and 29 C.F.R. Part 1926, Subpart V (Construction).  OSHA’s primary objective in revising the two standards was to align and update the rules for the construction of transmission and distribution installations with the rules for operations and maintenance of electric power generation, transmission, and distribution lines and equipment.

On April 1, 2014, almost nine years after the proposed rule, OSHA released a copy of the final rules.  The final rules will be officially published in the Federal Register on April 11, 2014 and most of the final rules provisions will become effective 90 days after the publication – July 10, 2014.  OSHA has delayed the effective date of some provisions, such as requiring fall protection for qualified employees changing locations on poles and similar structures and application of the new requirements for minimum approach distances until April 1, 2015.  However, for the most part employers must be prepared to fully implement the standard by July 10, 2014.

Highlights of Final Rule

Below are highlights of the final rules, which apply for both construction and general industry (operations and maintenance).  In addition to these requirements, OSHA has revised provisions on deenergizing transmission and distribution lines to apply to multiple crews and to deenergizing network protectors. OSHA also revised provisions for operating mechanical equipment near overhead power lines to clarify that the exemption from maintaining the minimum approach distances only applies to the insulated portions of aerial lifts.

Within this rulemaking, OSHA also revised the general industry (§ 1910.137) and added a new construction (§ 1926.97) standard for electrical protective equipment.  The existing construction standard for the design of electrical protective equipment applies only to electric power transmission and distribution work.  OSHA has revised this requirement so that it now applies to all construction work where electrical protective equipment is used.

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The major revisions include removing out dated consensus standards with more performance oriented requirements. However, the rule allows employers the option of compliance with the latest or future versions of consensus standards. The revisions focus on the design  and manufacture of rubber insulating equipment, such as blankets, matting, covers, line hoses, gloves and sleeves and also includes new requirements for the design and manufacture of equipment and insulating barriers.  Additionally, the revisions include care and use requirements, such as a requirement to visually inspect electrical protective equipment before use each day and testing on periodic basis.

Once the final rules are published in the Federal Register, any challenge to the final rules must be filed with a U.S. Court of Appeals within sixty days.  Assuming the rules are published on April 11, 2014, industry members would have until June 9, 2014 to petition for review.  It is too soon tell whether any such challenge will be filed.  Impacted employers should begin to review the final rules and determine whether changes to work practices and procedures will be necessary to come into compliance with the new requirements.

OSHA Announces Final Rule on Electric Power Generation, Transmission and Distribution

Today, OSHA announced that it is issuing the final rule on Electric Power Generation, Transmission and Distribution.  The final rule will appear in the Federal Register on April 11, 2014.  The rule will become effective 90 days after it appears in the Federal Register. 

The final rule for general industry and construction include, among other things, new or revised provisions on host employers and contractors, training, job briefings, fall protection, insulation and working position of employees working on or near live parts, minimum approach distances, protection from electric arcs, deenergizing transmission and distribution lines and equipment, protective grounding, operating mechanical equipment near overhead power lines, and working in manholes and vaults.

The final rule also revises the general industry and construction standards for electrical protective equipment and also includes new requirements for the safe use and care of electrical protective equipment to complement the equipment design provisions.

A copy of the final rule is posted on OSHA’s website. 

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:

MSHA Rebuffed in Application of Flagrant Violation Tool. Federal Mine Safety and Health Review Commission Administrative Law Judge Alan Paez has rejected MSHA’s attempt to use prior citations and orders alleging “significant and substantial” violations (S&S) and unwarrantable failures to support a flagrant violation against Kentucky mine operator, Blue Diamond Coal Co.

OSHA Issues Guidance on Recordkeeping Duties for Temporary Workers. OSHA has issued a bulletin under its Temporary Worker Initiative to instruct staffing agencies and companies that hire temporary workers on their recordkeeping responsibilities. The agency’s Temporary Worker Initiative combines enforcement, outreach and training. It was launched because temporary workers were suffering serious or fatal injuries, many during their first days on the job. The bulletin is the first in a series of guidance documents intended to raise awareness about OSHA compliance requirements regarding temporary workers.

Ask a Jackson Lewis Attorney Q: We operate a 24/7 business. One of our employees has worked one weekend each month for the past two years due to her job requirements. Now, she has advised us that she can no longer work on Saturdays because she has become more religious, and Saturday is her Sabbath. Can she change her availability in this way? Do we have to excuse her from weekend work?

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.

 

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:

Enforcement, New Rules are Themes of MSHA, OSHA Budgets. Enforcement and new regulations are twin themes of the proposed 2015 fiscal year budgets of two Department of Labor (DOL) safety and health agencies.

More Money Proposed for ALJ Case Backlog. The number of workers’ compensation, immigration, wage and whistleblower cases has more than doubled over the past decade, while the number of judges available to handle them has declined.

Ask a Jackson Lewis Attorney. Q: We have a small business with 44 employees. Due to a sudden increase in customer orders, our president wants all employees in our production and fulfillment departments to work from 9-2 every other Saturday for the next three months. Several of our employees have claimed this violates wage and hour laws. What are the employees’ and the company’s rights in this situation?

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.

OSHA Continues to Push Key Enforcement Initiatives

At a recent American Bar Association meeting, Jordan Barab, Deputy Assistant Secretary of Labor for OSHA, Dorothy Dougherty, Deputy Assistant Secretary of Labor for OSHA and Tom Galassi, Director of Enforcement Programs, all stressed the agency’s continued focus on key enforcement initiatives, such as temporary workers, workplace violence and heat stress.  In addition, they emphasized the increased use of corporate-wide settlement agreements and enterprise-wide relief and the continued use of the severe violator enhancement program (SVEP). According to OSHA, some of these initiatives are creative enforcement tools, and it was made clear that OSHA continues to see enforcement, as opposed to compliance assistance, as its primary objective.

This push on enforcement in the last several years is illustrated by recent statistics, such as the increase in the average penalty.  The numbers continue to reflect OSHA’s enforcement efforts. As indicated in the charts below, the average penalty per serious violation doubled in fiscal year 2011, with a slight drop in the average penalty for fiscal year 2013.  It appears that the average penalty per serious violation for fiscal year 2014 has increased, and is at the highest it has been compared to the previous four years.  Given that the fiscal year does not end until September 31, 2014, it remains to be seen if this average will increase or stay the same.

Interestingly, it seems that the sequestration had little impact on the total number of violations issued in 2013 compared to 2012. Both fiscal years averaged roughly 78,000 total violations issued.  However, this time last year, the number of total violations issued for fiscal year 2013 was roughly 26,000.  In comparison, to date for fiscal year 2014 the total number is roughly 20,000.  This drop in total violations is likely due to the government shutdown in October, which impacted the beginning of fiscal year 2014.

TOTAL VIOLATIONS ISSUED FY 2010-2014

Graph 1

AVERAGE CURRENT PENALTY PER SERIOUS VIOLATION

Graph 2

Also worthy of noting is that the percentage of inspections resulting from a complaint for fiscal year 2014 has already exceeded those for fiscal year 2013.  In short, complaint inspections are on the rise.  For the entire 2013 fiscal year 24% of inspections were the result of complaints.  For only a portion of the fiscal year 2014, that percentage is up to 28%.  This could average out the next few months; however, it appears that more inspections are resulting from employee complaints.

And while OSHA’s list of Top 10 Most Cited Standards typically changes very little year to year, for fiscal year 2014, the list included scaffolding and ladders.  Removed from the list was bloodborne pathogens and personal protective equipment.

FY 2014

Top 10 Most Cited OSHA Standards

  1. Fall Protection
  2. Hazard Communication
  3. Scaffolding
  4. Respiratory Protection
  5. Powered Industrial Trucks
  6. Electrical, Wiring Methods
  7. Lockout/Tagout
  8. Ladders
  9. Machine Guarding
  10. Electrical, General Requirements

 

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:

High Court Holds Time Changing Clothes Is Not Compensable.  A U.S. Supreme Court decision may well have put to rest the highly litigious issue of whether or not workers are entitled to payment for time spent putting on and taking off personal protective equipment (PPE).

Barges at Coal Load-out Facility Fall under MSHA, Judge Rules.  MSHA’s jurisdiction extends to the barge staging area of a terminal that employs workers who prepare and load the barges with shipments of coal. An administrative law judge made this ruling in a case arising after a 52-year-old deckhand fell off a barge into the Tennessee River in February 2012 and drowned.

Ask a Jackson Lewis Attorney.  Q: One of our employees just gave us notice that he is resigning, effective in two weeks. Can we tell him today is his last day?  If we do so, must we pay him for the two weeks?

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.

 

OSHA’s FY 2015 Budget Request

President Obama recently issued the Department of Labor’s budget request for fiscal year (FY) 2015.  As part of the budget request to Congress, the Occupational Safety and Health Administration (OSHA) is seeking a total budget of $565 million, which is an increase of $12.7 million from the enacted FY 2014 budget.

OSHA is also requesting an additional $3 million for federal enforcement of the health and safety standards of the Occupational Safety and Health Act of 1970, as well as an additional $4 million and 27 FTEs to increase the resources needed to investigate and administer 22 whistleblower statutes under the Whistleblower Protection Programs. The budget also requests an additional $400,000 for the State Programs budget in order to fund the recently approved public employee State plan in Maine and an additional $3.5 million for the State Programs budget to ensure that the states have the resources to run programs that are as effective as OSHA’s Federal enforcement.

OSHA’s budget request for safety and health standards, technical support, and compliance assistant remain relatively flat with virtually no increase in funds.

In the FY 2015 budget, OSHA also includes two proposed amendments to its appropriation language: (1) a request to increase the amount that OSHA may retain from training institute course tuition and fees from $200,000 to $499,000 per fiscal year; and (2) a proposal to allow targeted inspections of small establishments that may have potential for catastrophic incidents (e.g., those subject to Process Safety Management or the EPA’s Risk Management Program).

Of particular note in the FY 2015 budget, OSHA asserts that the:

current appropriations language limits OSHA’s ability to conduct safety and health inspections of small businesses (10 or fewer employees) in industry codes that have lower-than-average workplace injury and illness rates.  Neither the number of workers in a company nor low injury and illness rates, however, is predictive of the potential for high-consequence catastrophic incidents, resulting in multiple casualties and extensive property damage that can damage whole communities.

 

Part 3: Will Your LOTO Program Stand Up to An OSHA Inspection?

In the last installment of this LOTO series, we address the periodic inspections and training requirements.   

Are We Performing Periodic Inspections?

Employers are required to conduct periodic inspections of their energy control procedures at least annually to ensure that they are being effectively implemented and to correct any deviations or inadequacies. 29 C.F.R. § 1910.147(c)(6). The periodic inspection must be performed by an “authorized employee” other than the one(s) utilizing the procedures being inspected.

The periodic inspection shall include a review between the inspector and each authorized employee of that employee’s responsibilities under the energy control procedures and of the limitations of the tagout systems, if used, as provided for in 29 C.F.R. § 1910.147(c)(7)(ii).

The employer is required to certify that that the periodic inspections were performed. The certification shall identify (1) the machine or equipment on which the energy control procedure was being utilized; (2) the date of the inspection; (3) the employees included in the inspection; and (4)the person performing the inspection.

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