OSHA Law Blog : Occupational Safety Lawyer & Attorney : Jackson Lewis Law Firm : Health, OSHA Compliance

OSHA's Cranes and Derricks in Construction final rule has just cleared the Office of Management and Budget (OMB), setting the stage for this important rule to be published within the next few weeks.

As previously discussed in this space, this final rule has been several years in the making.  The proposal contained over 40 separate sections of detailed requirements in such areas as crane assembly, crane operation, inspections, and operator training and certification.  The most controversial provision in the proposed rule related to “Operator Qualification and Certification.” OSHA proposed that all crane operators be certified to operate a crane, principally by having the operators trained and tested by an “accredited” crane operator testing organization.  This provision alone was estimated by OSHA to cost employers $37.3 million.

Construction employers who use cranes in their operations must be prepared to implement the requirements in the final rule.  Once published, we will provide additional information on the final rule's provisions.

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In a recently issued letter of interpretation, OSHA has confirmed its policy that employees working in an aerial lift over water may unhook their lanyard from the boom or basket of the lift.  The letter was in response to an employee inquiry regarding a company policy of allowing employees to unhook their lanyards when performing operations over water.  The employee asked whether this practice was allowable under OSHA's construction standards (29 CFR 1926.453(b)(2)(v)).

In response to the questioner, OSHA reiterates that while no such allowance was provided in the actual text of the standard, OSHA's existing cranes and derricks in construction rule -- along with the new cranes and derricks in construction proposal -- permits the practice.  As a result, OSHA concludes that it would be a de minimis violation of 29 CFR 1926.453(b)(2)(v) for employees to unhook their lanyards when performing work over water.  This, of course, makes sense as there is the possibility of a greater hazard to employees in the event of an aerial lift collapse over water if they are tied to the boom or basket.

Employers are encouraged to take note of this interpretation when developing their fall protection programs.   

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Check out this interesting blog post from Frank Alvarez, head of Jackson Lewis's Disability, Leave, and Health Management practice group:  Time to Revisit ADA Medical Inquiry Rules at "Loggerheads" with OSHA Policy.  The post describes the EEOC's narrow interpretation of the ADA rule that employee medical inquiries be "job-related and consistent with business necessity" and questions whether such a narrow interpretation is counter to the underlying policies of the Occupational Safety and Health Act of 1970.     

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OSHA has just announced that its Severe Violator Enforcement Program (SVEP) is effective June 18th.  The SVEP “concentrates resources on inspecting employers who have demonstrated indifference to their OSH Act obligations by willful, repeated, or failure-to-abate violations.” Under the program, an inspection of an employer meeting the criteria of an SVEP case may result in enhanced follow-up inspections of the worksite at issue, nationwide inspections of the same employer of related worksites, increased “company awareness” of OSHA’s enforcement actions against the company, and enhanced settlement provisions including possible corporate-wide agreements.  In addition, OSHA intends to prominently publicize -- in press releases and on its website -- those employers that are part of the program. 

The following types of cases are considered SVEP cases under the program:

• A fatality/catastrophe inspection in which OSHA finds one or more willful or repeated violations or failure-to-abate notices based on a serious violation related to a death of an employee or three or more hospitalizations.
• An inspection in which OSHA finds two or more willful or repeated violations or failure-to-abate notices (or any combination of these violations/notices), based on high gravity serious violations related to a “high-emphasis hazard.” A high-emphasis hazard is defined as a high gravity serious violation of specific standards related to fall hazards, amputation hazards, combustible dust hazards, silica hazards, lead hazards, excavation/trenching hazards, shipbreaking hazards, and petroleum refinery hazards.
• An inspection in which OSHA finds three or more willful or repeated violations or failure-to-abate notices (or any combination of these violations/notices), based on high gravity serious violations related to highly hazardous chemicals, as defined in OSHA’s process safety management standard.
• All egregious enforcement actions.

OSHA continues its emphasis on enforcement and the SVEP is another tool that employers should expect OSHA to use aggressively.  Employers should take some time now to review their safety and health management systems to ensure that they are fully compliant with OSHA rules and proactively addressing safety and health issues in the workplace.

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OSHA has published a proposed rule that would revise requirements governing the prevention of slips, trips, and falls in general industry workplaces.  OSHA's "Walking-Working Surfaces and Personal Protective Equipment (Fall Protection Systems)" proposed rule impacts virtually every general industry workplace in the country.  Slips, trips, and falls are one of the leading causes of OSHA recordable injuries and OSHA estimates that its proposed rule will prevent 20 fatalities and 3,500 serious injuries every year.

The proposed rule revises OSHA's Subparts D and I of the general industry standards related to ladders, scaffolds, and fall protection, among other things.  The rules also include the general requirement that employers keep places of employment, passageways, storerooms and service rooms clean and in a sanitary condition, a requirement that has been widely applied by OSHA to a number of workplace hazards, including combustible dust.

Some of the key aspects of the proposal are:

• OSHA reiterates the application of the general housekeeping requirement to combustible dust and seeks comment on whether this should be explicitly included in the final rule;
• OSHA proposes several requirements for rope descent systems, commonly used in window cleaning operations;
• OSHA reiterates the fundamental duty to provide fall protection in general industry when employees could fall a distance of 4-feet or greater; and
• OSHA proposes to eliminate the use of body belts as part of personal fall arrest systems in general industry operations.

Given the breadth of this proposed rule, all general industry employers are encouraged to review it and comment on it.  Written comments, along with requests for a hearing, are due to the Agency by August 23, 2010.      

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