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

The Occupational Safety and Health Administration (“OSHA”) and the Mine Safety and Health Administration (“MSHA”) require employers to supply NIOSH-certified respirators to their employees whenever the use of respirators is required.  A NIOSH certificate of approval allows a respirator manufacturer the ability to sell its NIOSH-approved respirators to businesses or industries that require the use of respirators by their employees. 

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OSHA recently issued its long-awaited regulatory agenda.  The agenda is designed to provide stakeholders with notice of what major regulatory initiatives the agency is planning and the projected timetables for those initiatives.

OSHA’s agenda is the first issued in several months by the agency and provides a glimpse into the regulatory priorities – in President Obama’s second term.  The signature initiative of OSHA over the last four years has been its Injury and Illness Prevention Program (IIPP) rule.  That rule has been under development for several years, but has yet to be released in any form or fashion to the public.  The recently published regulatory agenda states that OSHA will initiate the SBREFA process in January of 2013 for the rule, with a Notice of Proposed Rulemaking to follow in December, 2013.  Another major rulemaking – OSHA’s effort to propose a comprehensive standard regulating silica – is slated to be published in May, 2013.

Three other significant regulatory actions under development are listed as follows:

• Combustible Dust – Initiate SBREFA in October, 2013.
• Electric Power Transmission and Distribution – Issue final rule in March, 2013.
• Update Recordkeeping Rule regarding Reporting of Amputations/In-patient Hospitalizations – Issue final rule in May, 2013.

All stakeholders should continue to monitor progress on these and other OSHA initiatives as we continue to see a very active OSHA in the coming months and years.
 

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With the presidential election just a few days away, there is a lot of uncertainty on the future direction of OSHA.  If President Obama wins a second term, employers should expect to see a more active OSHA from the regulatory perspective, as many rules that could impact the employers are poised to be published in either proposed or final form after the election.  From an enforcement perspective, employers should expect to see the same level of active OSHA enforcement in a second-term Obama presidency.  If Governor Romney wins the election, some of the regulatory initiatives currently in the pipeline may be slowed or even scrapped, but undoubtedly some will be proposed or finalized.  Enforcement should also continue at high levels, although some of the enforcement procedures and targeting programs of the Obama administration may be changed.  For example, it is possible that OSHA under a “President Romney” may revisit the Severe Violator Enforcement Program or the Enhanced Administrative Penalties Memorandum published during President Obama’s administration.  Needless to say, Tuesday’s results will be – and should be – followed closely by all.

Below is a description of some of the regulatory initiatives that are primed to move forward under a second term Obama Presidency (and perhaps even a first term Romney Presidency):

Injury and Illness Prevention Program (IIPP).  OSHA’s IIPP rule has been the agency’s oft-stated most-significant regulatory priority.  This initiative has been under development for almost three years.  Over the last several months, OSHA has hinted that it is ready to begin the Small Business Regulatory Enforcement Fairness Act (SBREFA) process for the rule, whereby the agency would solicit input on the rule from affected small business entities; but OSHA has not yet started the process.  It is still unclear what an IIPP rule will look like since OSHA faces the challenge of creating mandatory requirements that can be applied to employers of all sizes and in all industries.  Stay tuned!!

Crystalline Silica.  Employers should also stay tuned for OSHA’s rulemaking to comprehensively regulate crystalline silica.  OSHA’s draft proposed regulatory text for the rule, published in 2002, considered lowering the permissible exposure limit for the substance; implementing extensive “housekeeping” requirements, including prohibiting the practice of dry sweeping; requiring exposure monitoring and the establishment of regulated areas; and imposing medical surveillance obligations.  The proposed regulation could have significant impacts on employers and is still under review by the Office of Management and Budget (OMB), where it was first submitted in February, 2011.  This is a proposed rule that could certainly be affected by the outcome of the election.

Stricter Injury and Illness Reporting Obligations.  OSHA has also proposed requiring employers to report workplace amputations to the agency within 24 hours, as well as all in-patient hospitalizations within 8 hours.  Existing recordkeeping rules require employers to report in-patient hospitalizations of 3 or more employees to OSHA within 8 hours.  Any workplace fatality would continue to be reportable, as well.  OSHA’s proposed rule that would require employers to “check” a separate column on the OSHA 300 Log is also still out there and potentially ready to go final.  Should President Obama win a second term, employers should not be surprised if these rules are finalized in pretty short order.
 

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The Rhode Island Department of Health is now requiring seasonal flu vaccines for all health care workers, including volunteers, who have direct contact with patients.  Click here to read the full article.

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With the election right around the corner, many employers are starting to speculate about what OSHA initiatives might be coming down the pike in 2013.  Click here for an interesting article examining possible initiatives for 2013 for the construction industry.

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It has been approximately two years since the Department of Labor announced its “Plan/Prevent/Protect” compliance strategy, with the basic goal to “ensure employers and other regulated entities are in full compliance with the law every day, not just when Department inspectors come calling.”  We thought that it would be interesting to take a quick look back over the last two years to see how some of the key DOL agencies did in fulfilling their promised action items.  The attached Special Report looks back at the activities of OSHA, OFCCP, and the Wage-Hour Administration under Plan/Prevent/Protect. 

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In one of the most significant rulemaking efforts in over a decade, OSHA has finalized a rule revising its hazard communication standard to align it with the United Nations’ Globally Harmonized System of Classification and Labeling of Chemicals (GHS). The rule will affect over 5 million business establishments across the country. Over 40 million employees will need to be retrained on hazard communication under the proposal. OSHA estimates the annualized compliance costs will be over $200 million for employers. Annualized net monetized benefits are estimated to be approximately $550 million.

Click here for an article analyzing the new requirements.

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OSHA has published its long awaited update to its Hazard Communication standard to align the standard with the Globally Harmonized System of Classification and Labeling of Chemicals.  Click here to go to OSHA's webpage on the topic, which includes links to the final rule and other guidance material.

We will be providing additional information on the rule and employer compliance obligations in the coming days.

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Just weeks after announcing that it would be initiating the Small Business Regulatory Enforcement Fairness Act (SBREFA) process for its IIPP rule, the Agency recently announced that there would be an additional delay in starting the process.  IIPP has the potential to be the most significant OSHA rulemaking in over a decade, potentially requiring all employers to implement a safety and health program at their worksites.  The Agency cited delays in preparation of the SBREFA package for the hold-up in starting the process.  OSHA gave no indication in its notification of when the process will be initiated, so stakeholders should "stay tuned" and monitor OSHA's website for developments.

While IIPP is delayed, OSHA's final rule updating its Hazard Communication standard to align with the Globally Harmonized System of Hazard Communication may be on the verge of publication.  The final rule was just recently cleared by the Office of Management and Budget, the final regulatory step before publication in the Federal Register.  OSHA could publish the final rule within the next month.

The rule could affect over 5 million business establishments across the country and potentially over 120 million employees. Over 40 million employees may need to be re-trained. In the proposed rule, OSHA estimated the annualized compliance costs will be almost $100 million for employers. Annualized benefits were estimated to be approximately $850 million.  Attached is a Special Report on the proposed rule that summarizes its key provisions.  While the final rule will differ from the proposed rule, the Special Report provides background information on the Agency's approach to the rulemaking generally.

We will continue to keep stakeholders apprised of developments with these rulemakings.       

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OSHA is poised to release to the public its initial regulatory approach to its Injury and Illness Prevention Program (IIPP) rule. OSHA has announced that it will begin the Small Business Regulatory Enforcement and Fairness Act (SBREFA) process for its IIPP rule, at which time the Agency will likely make public a draft regulatory text and some preliminary analyses of the costs and benefits of the rule.

The Agency’s oft-stated most significant regulatory priority has been under development in the Agency for over two years. Even so, most stakeholders have no idea what a federal IIPP rule will look like. Will it look like California’s IIPP rule? Or will it take some other approach to requiring employers to establish safety and health management systems in the workplace?

Most safety and health management systems have some form of the following elements, implemented to proactively address hazards in the workplace:

• Management Leadership
• Employee Participation
• Hazard Identification and Prioritization
• Hazard Control
• Education and Training
• Evaluation and Continuous Improvement

OSHA’s draft proposed rule will likely integrate some form of these elements. Of course, the real challenge for OSHA is to take these broad concepts and turn them into mandatory requirements, which can be broadly applied to employers in all industries and of all sizes. OSHA must also attempt to craft a rule that does not disrupt existing employer programs that may be working. However OSHA deals with these issues, it is important for stakeholders to watch OSHA’s rulemaking closely and actively engage OSHA on what will work and not work with respect to a proposed IIPP rule.

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OSHA's Spring 2011 Regulatory Agenda reiterates OSHA's earlier commitment to initiate the Small Business Regulatory Enforcement Fairness Act process for its Injury and Illness Prevention Program (IIPP) rule in June of this year.  Now midway through July, it is unclear when OSHA will release to the public its initial regulatory approach to the IIPP rule.  The Agency’s oft-stated most significant regulatory priority has been under development in the Agency for over two years and, yet, most stakeholders have no idea what a federal IIPP rule will look like.  Will it look like California’s IIPP rule?  Or will it take some other approach to safety and health management systems in the workplace?

Most safety and health management systems have some form of the following elements,  implemented to proactively address hazards in the workplace:

• Management Leadership
• Employee Participation
• Risk Identification and Prioritization
• Hazard Control
• Education and Training
• Evaluation and Continuous Improvement

Of course, the real challenge for OSHA is to take these broad concepts and turn them into mandatory requirements, which can be broadly applied to employers in all industries and of all sizes.  OSHA must also attempt to craft a rule that does not disrupt existing employer programs that may be working.  However -- and whenever -- OSHA deals with these issues, it is important for stakeholders to watch OSHA’s rulemaking closely and actively engage OSHA on what will work and not work with respect to a proposed IIPP rule.   

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OSHA has proposed changing the industries that would be generally exempt from maintaining regular workplace injury and illness records. Employers in exempt industries are not required to maintain OSHA 300 Logs, complete OSHA 301 incident report forms, or complete the OSHA 300A annual summary forms.

OSHA’s proposed rule also would require employers to report workplace amputations to the Agency within 24 hours, as well as all in-patient hospitalizations within 8 hours. Existing recordkeeping rule (Part 1904) requires employers to report in-patient hospitalizations of 3 or more employees to OSHA within 8 hours. Any workplace fatality would continue to be reportable, as well.

Partially Exempt Industries

OSHA’s recordkeeping rule excludes certain employers in relatively low hazard industries from the Agency’s basic recordkeeping requirements. The current exemption list is industry-specific and based on the now-outdated 1987 Standard Industrial Classification (SIC) coding system. OSHA’s proposed rule will re-categorize the exempt industries based on the North American Industrial Classification System (NAICS), which is the system used by federal agencies for statistical research purposes. The proposal also will remove some industries from the list based on new injury and illness data compiled by the Bureau of Labor Statistics.

The proposed change is significant. Some employers who have for years been regularly exempt from maintaining OSHA 300 Logs will now be required to keep them. Recordkeepers will need to be trained on identifying a work-related injury and illness and recording properly such injuries and illnesses that meet OSHA’s severity criteria. Conversely, some employers that have been required to keep records will now be exempt from this obligation. 

Employers should check the following lists to determine where they fit within OSHA’s proposed rule:

Industries that Include Establishments to be Newly Required to Keep Records

3118       Bakeries and Tortilla Manufacturing

4411       Automobile Dealers

4413       Automotive Parts, Accessories, and Tire Stores

4441       Building Material and Supplies Dealers

4452       Specialty Food Stores

4453       Beer, Wine, and Liquor Stores

4539       Other Miscellaneous Store Retailers

4543       Direct Selling Establishments

5313       Activities Related to Real Estate

5322       Consumer Goods Rental

5324       Commercial and Industrial Machinery and Equipment Rental and Leasing

5419       Other Professional, Scientific, and Technical Services

5612       Facilities Support Services

5617       Services to Buildings and Dwellings

5619       Other Support Services

6219       Other Ambulatory Health Care Services

6241       Individual and Family Services

6242       Community Food and Housing, and Emergency and Other Relief Services

7111       Performing Arts Companies

7113       Promoters of Performing Arts, Sports, and Similar Events

7121       Museums, Historical Sites, and Similar Institutions

7139       Other Amusement and Recreation Industries

7223       Special Food Services

8129       Other Personal Services

Industries that Include Establishments to be Newly Partially Exempt from Keeping Records

4412       Other Motor Vehicle Dealers

4431       Electronics and Appliance Stores

4461       Health and Personal Care Stores

4471       Gasoline Stations

4511       Sporting Goods, Hobby, and Musical Instrument Stores

4532       Office Supplies, Stationery, and Gift Stores

4812       Nonscheduled Air Transportation

4861       Pipeline Transportation of Crude Oil

4862       Pipeline Transportation of Natural Gas

4869       Other Pipeline Transportation

4879       Scenic and Sightseeing Transportation, Other

4885       Freight Transportation Arrangement

5111       Newspaper, Periodical, Book, and Directory Publishers

5122       Sound Recording Industries

5151       Radio and Television Broadcasting

5172       Wireless Telecommunications Carriers (except Satellite)

5173       Telecommunications Resellers

5179       Other Telecommunications

5181       Internet Service Providers and Web Search Portals

5191       Other Information Services

5221       Depository Credit Intermediation

5239       Other Financial Investment Activities

5241       Insurance Carriers

5259       Other Investment Pools and Funds

5413       Architectural, Engineering, and Related Services

5416       Management, Scientific, and Technical Consulting Services

5418       Advertising and Related Services

5511       Management of Companies and Enterprises

5614       Business Support Services

5615       Travel Arrangement and Reservation Services

5616       Investigation and Security Services

6116       Other Schools and Instruction

7213       Rooming and Boarding Houses

8112       Electronic and Precision Equipment Repair and Maintenance

8114       Personal and Household Goods Repair and Maintenance

8122       Death Care Services

8134       Civic and Social Organizations

8139       Business, Professional, Labor, Political, and Similar Organizations

Reporting In-Patient Hospitalizations and Amputations

Under OSHA’s existing recordkeeping rule, employers must report to OSHA within 8 hours all work-related fatalities and in-patient hospitalizations of 3 or more employees. OSHA’s proposal would broaden this reporting requirement to include work-related amputations and any work-related in-patient hospitalization of an employee. The former would be required to be reported within 24 hours of the occurrence of the incident and the latter would need to be reported within 8 hours. 

With this proposal, OSHA is following the actions of many states that have adopted more stringent reporting requirements for amputations and in-patient hospitalizations. 

Employers have until September 20, 2011, to file written comments on the proposal and are encouraged to participate in the rulemaking process.

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OSHA has launched a survey of safety and health practices of private sector employers "as a tool toward better designing future rules, compliance assistance and outreach efforts."  OSHA is surveying as many as 19,000 employers nationwide of all sizes and in all industries.  Recipients of the survey can complete it either in hard copy form or electronically.

It is expected that the "Baseline Survey of Safety and Health Practices" will be used primarily to compile information about existing employers' use of safety and health management systems, including who manages safety and whether annual evaluations are undertaken.  This, in turn, will be helpful to the Agency in pursuing its Injury and Illness Prevention Program (IIPP) rule.  It also may be used to support other OSHA rulemakings in the future.  OSHA has stated that the survey will not be used for enforcement and will be anonymous.   

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The Office of Management and Budget (OMB) has announced that it is extending its review period for OSHA's proposed crystalline silica rule.  The proposal was received by OMB on February 14, 2011.  This extension follows the recent pattern of OMB taking longer than the standard 90 days to review OSHA rules under Executive Order 12866.  Notably, last year OMB extended its review of OSHA's proposal to add a separate MSD column on the OSHA 300 Log.

OSHA's proposal to comprehensively regulate crystalline silica in general industry, maritime, and construction could be one of the most significant rulemakings in OSHA's history.  Silica, a component of the Earth's crust, is present in a number of industries.  Both employer and employee stakeholders have been actively engaged with OSHA during the pre-rulemaking process.  Recently, several different groups of stakeholders have met with OMB officials to discuss the proposed rule.

It is unkown what has caused OMB to extend its review of the proposal.  Employers should continue to monitor this issue closely, however, and be engaged in the rulemaking process if, or when, OSHA publishes the proposal.       

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California employers must now conduct an assessment of their workplaces for hazards that may require the use of certain personal protective equipment (PPE) and train employees in the use, care, and limitations of required PPE. The PPE included in the scope of the new rules are eye and face protection, foot protection, head protection, and hand protection. The new standard became effective on April 13, 2011.

The rules were originally proposed in 2010 as a result of an audit conducted by the federal Occupational Safety and Health Administration (OSHA) on the effectiveness of California OSHA’s (CalOSHA) safety and health enforcement and regulatory programs. In preparing responses to the federal audit, CalOSHA realized that it had not adopted equivalent rules to the federal requirements dealing with PPE hazard assessment and training. As a result, it proposed these new requirements to ensure equivalency with federal OSHA in this area – a requirement to operate a “State-plan State” under the Occupational Safety and Health Act of 1970.

Under the new rules, California employers must now assess their workplaces to determine if hazards are present, or are likely to be present, which necessitate the use of PPE, and if such hazards are present:

• select and have employees use the needed PPE;
• communicate the selection decisions to affected employees; and
• select the PPE that properly fits affected employees.

Furthermore, employers must document that the hazard assessment has been performed through a written certification that identifies the workplace evaluated, the person certifying that the evaluation has been performed, and the dates of the hazard assessment.

The rules also require that the employer train each employee who is required to use PPE on the following:

• when PPE is necessary,
• what PPE is necessary;
• how to properly wear and adjust the PPE;
• the limitations of the PPE; and
• the proper care, maintenance, useful life and disposal of the PPE.

Each employee must demonstrate an understanding of this information and will need to be retrained where changes in the workplace render previous training obsolete, changes in the types of PPE to be used render previous training obsolete, or inadequacies in an affected employee’s knowledge or use of assigned PPE indicate that the employee does not have the required competence. As with the hazard assessment, employers are required to certify in writing that their employees have been trained.

California employers must already assess their worksites through the state’s Injury and Illness Prevention Program rule, so this added requirement may be easily incorporated into existing safety and health systems. Nevertheless, all California employers are advised to review the new requirements and their own PPE programs to ensure they are fully compliant.

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OSHA announced today that it will be holding a series of three teleconferences, in partnership with the Small Business Administration's Office of Advocacy, on OSHA's proposed musculoskeletal disorder (MSD) column rule.  The teleconferences are designed to provide small businesses the opportunity to weigh-in on "their experiences in recording work-related MSDs and how they believe the proposed rule would impact them."

The rule, originally proposed last year, would have required employers to “check a box” in a separate column on the OSHA 300 log – an “MSD” column – for injuries and illnesses that fit within the Agency’s proposed definition.  OSHA also proposed to remove existing language from its recordkeeping compliance directive that “minor musculoskeletal discomfort” is not recordable as a restricted work case “if a health care professional determines that the employee is fully able to perform all of his or her routine job functions, and the employer assigns a work restriction for the purpose of preventing a more serious injury.”    

OSHA's proposal had been stuck at the Office of Management and Budget (OMB) for several months, before OSHA took the unique step of temporarily withdrawing the proposal from OMB review and agreeing to additional stakeholder outreach.

The three teleconferences will be held on April 11 at 1:30 p.m. EDT, April 12 at 9:00 a.m. EDT, and April 12 at 1:30 EDT.  Interested businesses should contact OSHA by April 4 if they wish to participate in the teleconferences.  

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OSHA is a step closer to publishing a proposed rule regulating crystalline silica exposure in general industry, construction, and maritime.  OSHA's proposal has been submitted to the Office of Management and Budget (OMB) for review under Executive Order 12866.  This is the final internal review before the proposal gets published in the Federal Register and signals that OSHA's proposal will be out in early to mid-Summer.

Crystalline silica is ubiquitous, comprising a substantial percentage of the Earth’s crust.  OSHA has evidence that exposure to crystalline silica at the current permissible exposure limit (PEL) causes silicosis and other diseases.  It has been seeking to comprehensively regulate the substance – and reduce the PEL – for over a decade.  In 2003, OSHA completed a Small Business Regulatory Enforcement Fairness Act (SBREFA) panel for an early draft version of the rule and has since been preparing regulatory text and background health, risk, and economic data to support the rulemaking.

OSHA's rulemaking efforts in this area are complicated by the broad scope of the rule -- a number of employers in a variety of industries use silica in their operations -- as well as technical issues associated with controlling silica exposures.  There are also difficult issues of sampling methodology that the Agency must overcome.  And of course, stakeholders are keenly interested in what ancillary provisions OSHA might propose, such as medical surveillance requirements, housekeeping requirements, and requirements related to regulated areas.

All employers should stay tuned and follow this rulemaking closely, even at this early OMB review stage.  OMB has recently extended its review of a couple of OSHA rulemakings, which have had the effect of delaying publication.  It will be interesting to see how this particular review period proceeds. 

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The Department of Labor has just announced that OSHA is temporarily withdrawing from review by the Office of Management and Budget (OMB) its proposed rule to restore a column for musculoskeletal disorders (MSDs) on employer injury and illness logs.

The rule, originally proposed last year, would have required employers to “check a box” in a separate column on the OSHA 300 log – an “MSD” column – for injuries and illnesses that fit within the Agency’s proposed definition.  OSHA also proposed to remove existing language from its recordkeeping compliance directive that “minor musculoskeletal discomfort” is not recordable as a restricted work case “if a health care professional determines that the employee is fully able to perform all of his or her routine job functions, and the employer assigns a work restriction for the purpose of preventing a more serious injury.”    

OSHA's proposal had been stuck at OMB for several months, causing many stakeholders to question when or if a final rule would be issued.  In a press release announcing the withdrawal, OSHA cites the need to seek greater input from small businesses on the impact of the proposal.  OSHA "will do so through outreach in partnership with the U.S. Small Business Administration's Office of Advocacy."

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On December 20, 2010, OSHA released its fall regulatory agenda, which sets forth the Agency's current rulemaking priorities.  Over the last several months OSHA has been emphasizing the need to push forward on several regulatory inititatives.  OSHA rulemaking, however, can be painstakingly slow, and OSHA's fall regulatory agenda reflects that.

Of particular note, the issuance of a proposed rule for crystalline silica has been pushed back by the Agency until April of 2011.  OSHA has been working on this regulatory initiative since the mid-1990's.  Prerule actions to initiate the Small Business Regulatory Enforcement Fairness Act (SBREFA) process for OSHA's Injury and Illness Prevention Program rule and Combustible Dust rule are now set for June and April of 2011, respectively.  These rules have been signature initiatives of OSHA over the last several months.  Health rules on beryllium and diacetyl appear to be stuck in the Agency's peer review process.  At the same time, OSHA did not announce any major new regulatory initiatives in the fall agenda.  Two small construction rulemakings were added concerning reinforcing and post-tensioned steel construction and the prevention of equipment backing accidents.

OSHA's regulatory agenda also may be hitting obstacles at the Office of Management and Budget (OMB), which must review all significant OSHA rulemakings.  OMB has extended its review of two OSHA final rules:  General Working Conditions for Shipyard Employment and Occupational Injury and Illness Reporting Requirements-Musculoskeletal Disorders (MSD) Column.  The extended review of the latter rule has effectively prevented it from being implemented in 2011.

All stakeholders should continue to watch OSHA's regulatory agenda over the coming months as the Agency must make significant progress on rulemakings it wishes to finalize by the end of 2012.  We will, of course, continue to keep you apprised of developments.     

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In a surprise and rare move, the Office of Management and Budget (OMB) has extended its review of OSHA's Occupational Injury Recording and Reporting Requirements Rule -- Musculoskeletal Disorders (MSD) Column.  The rule, originally proposed this year, would require employers to “check a box” in a separate column on the OSHA 300 log – an “MSD” column – for injuries and illnesses that fit within the Agency’s proposed definition.  OSHA also proposed to remove existing language from its recordkeeping compliance directive that “minor musculoskeletal discomfort” is not recordable as a restricted work case “if a health care professional determines that the employee is fully able to perform all of his or her routine job functions, and the employer assigns a work restriction for the purpose of preventing a more serious injury.” 

OMB received OSHA's final rule to review on July 14, 2010.  Many stakeholders expected a quick review by OMB of the rule, followed by immediate publication in the Federal Register.  In order for the rule to go into effect on January 1, 2011, OSHA needs to provide the states adequate time to incorporate the new rule into their state plan programs.  Thus, many anticipated publication as early as this summer.

OMB, however, is clearly taking a hard look at OSHA's rule.  OMB rarely extends its reviews under Executive Order 12866 and this signals that OMB has issues with the rule, or its underlying economic analysis, that it has yet to resolve with OSHA.

We will continue to keep you informed of developments wth the rule and other OSHA recordkeeping initiatives.

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OSHA has proposed to make significant changes to its On-site Consultation program.  This popular program, in OSHA's own words, "provides well-trained professional safety and health personnel, at no cost and upon request of an employer, to conduct worksite visits to identify occupational hazards and provide advice on compliance with OSHA regulations and standards."  Consultation services are provided through cooperative agreements between the states and OSHA -- with federal funding.  Countless small employers, in particular, have taken advantage of the program to proactively address safety and health hazards in their worksites.

One of the benefits of the On-site Consultation program is that employers who willingly participate in the program may be eligible for deferrals from OSHA programmed inspections, such as those conducted per OSHA's Site Specific Targeting Program.  By doing so, OSHA is rewarding companies who are in good faith addressing safety and health hazards and implementing a safety and health management system.

In this proposed rule, OSHA is proposing to limit the period of time that employers may benefit from the programmed inspection deferral -- to only one year.  The proposal also provides for a further exception from the programmed inspection exemption for "other critical inspections" the Assistant Secretary of OSHA determines are necessary.  The proposal does not clearly define what are meant by "critical inspections," but notes that the exception would be applied rarely.

Employers are encouraged to submit comments on this proposed rule, particularly those employers that may have benefited from the program.  In particular, OSHA is seeking comments on the extent to which these changes would affect the willingness of employers to participate in the On-site Consultation program.  Comments are due by November 2, 2010.

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Now that OSHA's Cranes and Derricks in Construction final rule has been "officially" published in the Federal Register, employers must start the painstaking task of crawling through all of the new requirements and making sure their policies and procedures are fully compliant.  The vast majority of the rule's new requirements take effect on November 8, 2010, so that leaves employers only three months to accomplish this.

To help employers start the process, Jackson Lewis has attached this Special Report, which details the final rule and some of its key requirements.  

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After issuing a flurry of new enforcement initiatives earlier in the year, such as the Severe Violator Enforcement Program and its memorandum administratively increasing civil penalties, OSHA seems to have shifted its focus a little back toward its regulatory program.  OSHA rulemaking often proceeds at a glacial pace, but in the last few months the Agency has issued two significant rulemaking documents:  a proposed rule to revise standards for housekeeping, walking-working surfaces, and fall protection in general industry, and a final rule updating OSHA's Cranes and Derricks in Construction standards.  The latter document will be published in the Federal Register on August 9.

That is not the end, however.  OSHA's final rule updating recordkeeping requirements to add a separate column for recording musculoskeletal disorders (MSDs) is at the Office of Management and Budget for review.  Employers should expect to see it issued in the very near future.    

In OSHA's proposed MSD column rule, published earlier this year, employers would have been required to “check the box” in a separate column on the OSHA 300 log – an “MSD” column – for injuries and illnesses that fit within the Agency’s proposed definition. For purposes of the proposal, the Agency defined MSDs as:

[D]isorders of the muscles, nerves, tendons, ligaments, joints, cartilage and spinal discs. MSDs DO NOT include disorders caused by slips, trips, falls, motor vehicle accidents, or other similar accidents. Examples of MSDs include: Carpal tunnel syndrome, Rotator Cuff syndrome, De Quervain’s disease, Trigger finger, Tarsal tunnel syndrome, Sciatica, Epicondylitis, Tendinitis, Raynaud’s phenomenon, Carpet layers knee, Herniated spinal disc, and Low back pain.

OSHA also proposed to remove existing language from its recordkeeping compliance directive that “minor musculoskeletal discomfort” is not recordable as a restricted work case “if a health care professional determines that the employee is fully able to perform all of his or her routine job functions, and the employer assigns a work restriction for the purpose of preventing a more serious injury.” OSHA stated it was concerned that this language created confusion among employers about recording MSDs. 

OSHA's proposal elicited significant comment from employer and employee groups.  While OSHA may make some changes to its proposal in response to these comments, given the speed with which the Agency is proceeding with the rulemaking, employers should anticipate OSHA finalizing a new MSD column on the OSHA 300 log in some form and making that change effective in the beginning of 2011.

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OSHA's final rule on Cranes and Derricks in Construction has been issued.  Click here to view the document.  As we review the document further, we will provide additional information on the new requirements.

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OSHA has announced that its long-awaited Cranes and Derricks in Construction final rule will be issued on July 28.  OSHA will also be holding a special media briefing on the final rule that same day, featuring OSHA Assistant Secretary David Michaels.  Dr. Michaels will provide an overview of the standard and will answer questions.  We will, of course, provide additional information on the final rule's provisions once it is released.

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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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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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OSHA's Cranes and Derricks in Construction final rule is currently under review at the Office of Management and Budget.  The rule was received by OMB on April 9, 2010, which means that OSHA could publish the rule by the end of July.  Construction employers who use cranes in their operations must prepare for what is sure to be a significant overhaul of OSHA's rules for crane operations.

This final rule has been several years in the making.  It was developed by the Agency through negotiated rulemaking, whereby representatives of employers and organized labor work together with OSHA to develop a draft rule. Consensus was reached by the negotiated rulemaking committee in 2004 and the Agency has been preparing the rule ever since.

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.

Other key requirements proposed by the Agency included:

• General contractors at construction worksites would be required to ensure that the ground at a worksite is firm, drained, and graded so that cranes used will have adequate support.
• Employers operating cranes within 20 feet of power lines would be required to choose from a menu of different options to ensure the cranes do not strike energized lines, possibly injuring or killing employees. 
• Employers would need to inspect cranes before every shift, once a month, and at least once a year.
• All signal persons used in crane operations would need to be certified by a “qualified” evaluator, which the proposal defined as a person who has demonstrated that he or she is competent in accurately assessing whether the signal person understands the types of signals to be used, application of the signals, and crane operation and limitations, among other things.

While OSHA will allow employers time to come into compliance with the new requirements, construction employers should immediately review the final rule once it is published and start to make any necessary changes to their crane operations.

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OSHA has just announced that it is extending by 15 days the public comment period for its proposal to add a separate column on the OSHA 300 log for employers to record work-related musculoskeletal disorders (MSDs).  Those wishing to comment on the proposed rule must now do so by March 30, 2010.  Four separate stakeholders had requested an extension of the comment period. 

Under the proposed rule, employers would be required to “check the box” in a separate column on the OSHA 300 log – an “MSD” column – for injuries and illnesses that fit within the agency’s definition. For purposes of the proposal, the agency defines MSDs as:

[D]isorders of the muscles, nerves, tendons, ligaments, joints, cartilage and spinal discs. MSDs DO NOT include disorders caused by slips, trips, falls, motor vehicle accidents, or other similar accidents. Examples of MSDs include: Carpal tunnel syndrome, Rotator Cuff syndrome, De Quervain’s disease, Trigger finger, Tarsal tunnel syndrome, Sciatica, Epicondylitis, Tendinitis, Raynaud’s phenomenon, Carpet layers knee, Herniated spinal disc, and Low back pain.

OSHA also is proposing to remove existing language from its recordkeeping compliance directive that “minor musculoskeletal discomfort” is not recordable as a restricted work case “if a health care professional determines that the employee is fully able to perform all of his or her routine job functions, and the employer assigns a work restriction for the purpose of preventing a more serious injury.” OSHA is concerned that this language creates confusion among employers about recording MSDs. OSHA’s proposal attempts to clarify that employers must record abnormal conditions resulting in minor musculoskeletal discomfort, regardless of whether the conditions include objective signs of an injury or illness – so long as all of the other criteria for recording are met.

This is an important rulemaking and all stakeholders are encouraged to participate in the rulemaking process.

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In a move sure to be viewed by some as a prelude to a new ergonomics rulemaking, OSHA has proposed adding a separate column on the OSHA 300 log for employers to record work-related musculoskeletal disorders (MSDs). (The initial 2001 recordkeeping final rule had included an MSD column, but OSHA later deleted that column before the provision ever became effective.) The rule also proposes the same definition of “MSDs” that OSHA had included in the initial 2001 final rule. 

This is an important and fast-moving rulemaking. Interested stakeholders are encouraged to review the proposal thoroughly and provide comments to the agency. The comment period ends on March 15, 2010; the agency is holding a public meeting on the proposal on March 9, 2010.

Under the proposed rule, employers would be required to “check the box” in a separate column on the OSHA 300 log – an “MSD” column – for injuries and illnesses that fit within the agency’s definition. For purposes of the proposal, the agency defines MSDs as:

[D]isorders of the muscles, nerves, tendons, ligaments, joints, cartilage and spinal discs. MSDs DO NOT include disorders caused by slips, trips, falls, motor vehicle accidents, or other similar accidents. Examples of MSDs include: Carpal tunnel syndrome, Rotator Cuff syndrome, De Quervain’s disease, Trigger finger, Tarsal tunnel syndrome, Sciatica, Epicondylitis, Tendinitis, Raynaud’s phenomenon, Carpet layers knee, Herniated spinal disc, and Low back pain.

OSHA also is proposing to remove existing language from its recordkeeping compliance directive that “minor musculoskeletal discomfort” is not recordable as a restricted work case “if a health care professional determines that the employee is fully able to perform all of his or her routine job functions, and the employer assigns a work restriction for the purpose of preventing a more serious injury.” OSHA is concerned that this language creates confusion among employers about recording MSDs. OSHA’s proposal attempts to clarify that employers must record abnormal conditions resulting in minor musculoskeletal discomfort, regardless of whether the conditions include objective signs of an injury or illness – so long as all of the other criteria for recording are met.

OSHA describes this proposed rule as a non-significant regulatory action involving only two small costs for employers. OSHA believes that:

1.      employers – and specifically a human resources specialist – will be required to spend 5 minutes familiarizing themselves with the rule; and  

2.      employers will need to spend one additional minute than they currently spend in analyzing an injury or illness to determine whether it should be classified as an “MSD” and put into the correct column on the new recordkeeping forms.

OSHA’s action takes the agency back a decade to the end of the Clinton Administration, when OSHA completed its revised recordkeeping rule with a separate MSD column. Of course, many stakeholders will ask if this move signals a return to the other Clinton Administration rulemaking on MSDs: ergonomics. That rule was rescinded by Congress and President Bush under the Congressional Review Act.  OSHA’s leadership has insisted that this rulemaking is totally separate from any ergonomics initiative and should not be interpreted as a first step to a new ergonomics rule. However matters may develop on ergonomics, this rulemaking is important in its own right as it affects – by OSHA’s own count – approximately 1.5 million workplaces around the country.

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In mid-December 2009, Professor David Michaels was sworn in as the new Assistant Secretary of Labor for OSHA.  Shortly after being sworn in as Assistant Secretary, Professor Michaels gave an interesting speech at the National Institute for Occupational Safety and Health (NIOSH) Going Green Workshop.  The speech was entitled “Making Green Jobs Safe: Integrating Occupational Safety and Health into Green and Sustainability,” and provides a good glimpse as to where he would like to take OSHA in 2010 and beyond.

Professor Michaels’ speech touched on many important issues with respect to occupational safety and health.  In particular, he emphasized the need for workers to be heavily involved in workplace safety, to know the hazards they may face, and to work with their employers to identify and correct hazards in the workplace.  “To get us up to date and move into a safer, healthier future, it’s . . . clear that workers must have a stronger voice in workplace safety than they have now.”  Professor Michaels has always been a strong proponent of safety and health management systems, whereby employers and employees deal proactively with workplace hazards through management leadership, employee participation, hazard identification and control, and system evaluation.  His speech certainly suggests that he will continue to push this as head of OSHA.

Professor Michaels also mentioned OSHA’s “substantial” budget increase, which will “significantly increase the number of inspectors” OSHA puts in the field and the need to update many of OSHA’s outdated standards.  Translation:  the Agency must do everything it can to increase enforcement and engage in smart rulemaking to “to create good standards.”

So what does all this boil down to as a practical matter?  In 2010, employers should expect OSHA to continue to push forward aggressively on enforcement and regulatory initiatives.  Some specific initiatives to watch out for include a:

Final Cranes and Derricks in Construction rule. OSHA staff have been working diligently to finalize a rule addressing hazards associated with crane operations.  If the rule is finalized as proposed, it would be one of the largest overhauls of the nation’s safety regulations in the Agency’s history.  OSHA’s existing rules for cranes in construction take up only a few pages of the Code of Federal Regulations with several cross-references to outdated national consensus standards.  The proposed rule and preamble, in contrast, fill out 250 densely packed pages of the Federal Register.  The proposal contains over 40 separate sections of detailed requirements in such areas as crane assembly, crane operation, inspections, and operator training and certification.

Crystalline Silica Proposed Rule.  Crystalline silica is ubiquitous, comprising a substantial percentage of the Earth’s crust.  OSHA has evidence that exposure to crystalline silica at the current permissible exposure limit (PEL) causes silicosis and lung cancer.  It has been seeking to comprehensively regulate the substance – and reduce the PEL – for over a decade and the Agency seems poised to take that next step in 2010.  Expect a proposed rule on silica to be released sometime this year, as OSHA pushes forward on this longstanding initiative.

New Approach on Ergonomics.  For the last year, various administration officials have stressed the importance of OSHA dealing with WMSDs and ergonomics.  WMSDs still comprise a significant percentage of workplace injuries every year.  WMSDs occur in every industry and in every job throughout the country.

Almost a decade ago, the Clinton Administration finalized an ergonomics standard that would have required all general industry employers to implement an ergonomics program, including the elements of management commitment, employee participation, hazard assessment and control, and medical management.  It also would have mandated “work restriction protection,” which would have required that certain pay and benefits for employees be maintained for periods of time they are out of work due to a work-related injury.

Congress and President Bush disapproved of the final standard, however, and in 2001 it was rescinded under the Congressional Review Act (CRA).  As a result, OSHA is prohibited from promulgating an ergonomics standard that is “substantially the same” as the rescinded standard.  No one knows precisely what those words mean, but they are sure to be hotly debated over the next several months.

OSHA cannot keep avoiding the issue of ergonomics and likely will start to take on the issue in 2010 of what it can and cannot do under the CRA.  It will also likely increase ergonomics enforcement under the General Duty Clause.
 

No matter what happens in 2010, we will keep you up-to-date in this space on the latest OSHA developments.

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In 2009, OSHA emerged from the regulatory and enforcement shell that had shrouded it during the eight years of the Bush Administration. Once confirmed, Secretary of Labor Hilda Solis announced that a “new Sheriff” was in town, who would refocus the Department of Labor – including OSHA – on tough enforcement and aggressive rulemaking. In both areas, OSHA delivered on Secretary Solis’s promise.

            OSHA Increases Enforcement

Many critics of OSHA during the Bush Administration focused on the seeming “emphasis” on cooperative programs and compliance assistance, at the expense of strong enforcement. In response, the Department of Labor announced in 2009 the hiring of hundreds of additional compliance officers (CSHOs) to refocus the Agency on what many believe is its core mission – enforcing occupational safety and health standards. It also initiated or revamped several new National Emphasis Programs (NEPs) to further focus CSHOs on certain safety and health issues and hazards:

Chemical Facilities National Emphasis Program. OSHA initiated a new NEP to focus enforcement resources on process safety management (PSM) hazards in chemical facilities across the country. The NEP, effective July 27, 2009, is billed as a “new approach for inspecting PSM covered facilities” and “allows for a greater number of inspections by better allocation of OSHA’s resources.”  In its instructions to compliance officers regarding the scope of inspections, OSHA emphasizes implementation of the PSM standard over documentation. Paper programs are not enough and OSHA will make sure that employers are fully implementing their PSM programs.

Recordkeeping National Emphasis Program. In the fall of 2009, OSHA launched its long-awaited Recordkeeping NEP. The NEP subjects employers in certain industries to comprehensive injury and illness records reviews. The purpose of the NEP is to ascertain whether, and to what extent, employers are under-recording injuries and illnesses at the worksite. OSHA cites several recent studies in the NEP asserting under-recording by employers on OSHA 300 logs. The NEP is designed to “identify and correct under-recorded and incorrectly recorded cases.” Employers subjected to an NEP inspection will face what are likely to be the most comprehensive inspections in the history of the Agency, with detailed records reviews, interviews of numerous employees, and an analysis of employer safety incentive programs and the effect of these programs on the reporting of injuries and illnesses.

Facilities that Manufacture Food Flavorings Containing Diacetyl National Emphasis Program. After focusing for years on the hazards of occupational exposure to diacetyl in microwave popcorn production, OSHA finally shifted its focus with respect to diacetyl to employers who manufacture food flavorings containing diacetyl. OSHA cites a Centers for Disease Control (CDC) study finding seven cases of bronchiolitis obliterans – a lung disease associated with exposure to diacetyl – in employees working in facilities where flavorings are manufactured. As part of the NEP, OSHA identifies eighty three facilities for inspection and provides detailed guidance for compliance officers to determine the extent to which these facilities are in overall compliance with their obligations.

Perhaps the most eagerly anticipated – and discussed – enforcement initiative was not an NEP at all, but was related to OSHA enforcement procedures for high to very high occupational exposure to the 2009 H1N1 virus. H1N1 captivated the world this past year, and OSHA spent significant resources addressing the occupational safety and health side of the issue. In the spring and summer of 2009, OSHA responded to the H1N1 outbreak by reissuing and repackaging guidance documents on pandemic influenza that had been previously developed. In November, however, OSHA went further and announced inspection procedures for certain high-hazard H1N1 workplaces, including hospitals, emergency medical centers, doctors’ and dental offices and clinics.

A More Active Regulatory Agenda

In 2009, OSHA also set a course for more activity in the rulemaking arena. As with enforcement, many stakeholders were critical of the Bush Administration’s perceived lack of investment in OSHA’s regulatory agenda. The two most significant regulatory accomplishments during the Bush Administration were the final Hexavalent Chromium rule and the final Employer Payment for PPE rule. Many stakeholders, however, argued that even these accomplishments were essentially forced on the Agency by the federal courts. Whether this is true or not, the first year of the Obama Administration saw the announcement of several new regulatory initiatives and what is even more stunning is that these initiatives were announced without a permanent political head of the Agency.

In 2009, OSHA announced new rulemakings for combustible dust hazards and airborne infectious diseases. OSHA also announced that it would revisit in a new rulemaking the definition of work-related musculoskeletal disorders (WMSDs) and how WMSDs should be recorded on OSHA 300 logs. This year OSHA also published its proposed rule to update its hazard communication standard. The hazard communication proposal is one of the most significant OSHA rulemakings in over a decade. OSHA is proposing to revise its hazard communication standard to align it with the United Nations’ Globally Harmonized System of Classification and Labeling of Chemicals (GHS). If finalized, the rule would affect over 5 million business establishments across the country and potentially over 120 million employees. Over 40 million employees would need to be trained on hazard communication under the proposal. OSHA estimates the annualized compliance costs will be almost $100 million for employers. Annualized benefits are estimated to be approximately $850 million.

Finally, in 2009 OSHA made significant progress on its Cranes and Derricks in Construction proposed rule. OSHA’s proposal was over five years in the making. It was developed by the Agency through negotiated rulemaking, whereby representatives of employers and organized labor work together with OSHA to develop a draft rule. Consensus was reached by the negotiated rulemaking committee in 2004. OSHA held public hearings on the proposed rule in 2009 and Agency staff have been busy reviewing comments received with the goal of issuing a final rule in 2010.

All of this in just over 11 months. And yet, this is likely just the beginning for OSHA as 2010 is expected to bring greater enforcement and regulation. 

(More to come on what to expect in 2010 in the next blog post.)

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In a December 29, 2009 Federal Register notice, OSHA has announced three informal public hearings on its proposal to update its hazard communication standard. The hearings will begin at 9:30 am on the following dates:

• March 2, 2010 in Washington, DC;
• March 31, 2010 in Pittsburgh, PA; and
• April 13, 2010 in Los Angeles, CA.

OSHA’s hazard communication proposal is one of the most significant rulemaking efforts in over a decade. Click here for a full description of the proposal. OSHA is proposing to revise its hazard communication standard to align it with the United Nations’ Globally Harmonized System of Classification and Labeling of Chemicals (GHS). If finalized, the rule would affect over 5 million business establishments across the country and potentially over 120 million employees. Over 40 million employees would need to be trained on hazard communication under the proposal. OSHA estimates the annualized compliance costs will be almost $100 million for employers. Annualized benefits are estimated to be approximately $850 million.

Because of the broad scope of the proposed rule, all employers are encouraged to familiarize themselves with the requirements and participate in the informal public hearings. OSHA has announced that requests to appear at the hearings must be submitted by January 18, 2010, and testimony (if expected to be over 10 minutes in length) and documentary evidence must be submitted by February 1, 2010.

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OSHA has released its long-awaited Fall Regulatory Agenda.  The Regulatory Agenda lists the major rulemaking initiatives that the agency will be pursuing over the next 12 months.  The Agenda also provides a snapshot into the agency's priorities, as we enter the second year of the administration of President Obama.

Longstanding Rulemakings Remain on the Agenda

Most of the rulemaking items that started under President Clinton or Bush remain on OSHA's regulatory agenda.  OSHA continues to push forward with a silica rulemaking, which was initiated in the 1990s.  OSHA predicts that it will publish a proposed rule comprehensively regulating exposure to silica in the workplace in July, 2010.  Other rulemakings that continue to receive OSHA's attention include rulemakings on diacetyl, hazard communication, combustible dust, and tree care operations.

OSHA does announce in this regulatory agenda that it is abandoning its regulatory efforts to update its explosives rule.  This rulemaking had engendered some controversy during the Bush Administration over its proposed provisions related to storage of ammunition.

New Rulemakings Added

OSHA is also adding some new regulatory actions that are sure to be controversial.  First, OSHA is revisiting the issue of the definition of work-related musculoskeletal disorder (WMSD) and the need to identify specifically WMSDs in a separate recordkeeping column.  When OSHA developed its revised recordkeeping rule in the late 1990s, OSHA initially required employers to identify WMSDs separately on OSHA 300 logs.  This requirement, however, was abandoned by the Bush Administration in a follow-up regulatory initiative.  OSHA is now looking once again at the issue and it may reignite some of the controversy associated with past OSHA efforts related to WMSDs and ergonomics.

Second, OSHA is seeking information from the public on the need for a federal Aerosol Infectious Diseases standard.  Specifically, "OSHA is considering the need for a standard to ensure that employers establish a comprehensive infection control program and control measures to protect employees from airborne infectious disease exposures to pathogens that can cause significant disease."  California recently adopted its own aerosol transmissible disease standard and this rulemaking initiative suggests that federal OSHA is exploring the need for such a standard nationwide.

OSHA continues to be active on both regulatory and enforcement initiatives.  We will continue to keep you apprised in this space on the latest OSHA developments.              

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In one of the most significant rulemaking efforts in over a decade, OSHA is proposing to revise its hazard communication standard to align it with the United Nations’ Globally Harmonized System of Classification and Labeling of Chemicals (GHS). If finalized, the rule would affect over 5 million business establishments across the country and potentially over 120 million employees. Over 40 million employees would need to be trained on hazard communication under the proposal. OSHA estimates the annualized compliance costs will be almost $100 million for employers. Annualized benefits are estimated to be approximately $850 million.

Because of the broad scope of the proposed rule, all employers are encouraged to familiarize themselves with the requirements and participate in the rulemaking process. Comments on the proposal must be submitted to OSHA by December 29, 2009.

Attached is a Special Report on the proposed rule that summarizes its key provisions.

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OSHA’s Advance Notice of Proposed Rulemaking (ANPR) on combustible dust should be published soon in the Federal Register. The ANPR is currently under review by the Office of Management and Budget, the final step in the intergovernmental review process. Employers with combustible dust hazards in their worksites are encouraged to participate in the rulemaking process.

Combustible dusts are solids ground into fine particles, which can cause a fire or explosion when suspended in air under certain circumstances. Common examples of combustible dusts include metal (aluminum and magnesium), wood, plastic, rubber, coal, flour, sugar, and paper, among others. OSHA has identified  a number of industries with combustible dust hazards, including agriculture, chemicals, food, grain, plastics, wood, paper, textiles, pharmaceuticals, tire and rubber manufacturing, and metal processing. While certain OSHA standards provide some protection against combustible dust, for example, Housekeeping (29 CFR 1910.22) and Electrical Equipment in Hazardous Locations (29 CFR 1910.307), OSHA does not have a single comprehensive rule to protect employees from combustible dust explosions.

Secretary of Labor Solis, in announcing the combustible dust rulemaking, stated that “OSHA is reinvigorating the regulatory process to ensure workers receive the protection they need while also ensuring that employers have the tools needed to make their workplaces safer.” We will continue to monitor closely developments in this area and update this blog when the ANPR is finally published in the Federal Register.

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OSHA's long-awaited proposed rule updating its Hazard Communication standard will be published in tomorrow's Federal Register (September 30). Here is an advance version of the proposal.

We will provide more information on this important rulemaking in an upcoming post.

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In a move widely applauded by both employer and employee groups, OSHA has updated its general industry and maritime personal protective equipment (PPE) standards to specifically allow the use of certain PPE designed according to current national consensus standards. OSHA’s final rule, “Updating OSHA Standards Based on National Consensus Standards; Personal Protective Equipment,” will bring greater certainty to compliance with OSHA’s PPE standards for head, eye, and foot protection and further encourage use of the latest protective technology. This final rule is the third in a series of updates OSHA is making to its rules to reflect the latest versions of national consensus standards.

With this final rule, employers are expressly allowed to use head, eye, and foot protection built in accordance with these recent national consensus standards:
 

• ANSI Z89.1-2003 for head protection;
• ANSI Z87.1-2003 for eye protection; and
• ASTM F-2412-2005 and ASTM F-2413-2005 for foot protection.

Before promulgation of this final rule, OSHA’s PPE standards required employers to provide head, eye, and foot protection built in accordance with outdated national consensus standards (e.g., the 1986 ANSI standard for head protection). This caused confusion for employers and employees as the national consensus standards were continually updated and PPE available for purchase no longer reflected the outdated design specifications. Employers who provided the latest PPE to their employees could be subject to a de minimis notice by OSHA – a technical violation of OSHA’s standards not adversely impacting the safety and health of employees. While employers are still able to use certain older equipment, as a result of this final rule, employers now can use the latest technology in head, eye, and foot protection, certain in the knowledge that they will be in compliance with OSHA’s standards.

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OSHA’s Hazard Communication/Globally Harmonized System proposed rule has been cleared by the Office of Management and Budget, paving the way for the agency to publish it for public comment. The proposed rule has been in the works for several years and the Obama Administration has made finalizing it a priority. If finalized, the proposed rule could significantly change the labels and Material Safety Data Sheets (MSDSs) that currently appear and accompany hazardous chemicals in the workplace.

OSHA’s existing Hazard Communication rule (“Haz Com”) requires chemical manufacturers and importers to analyze the hazards of the chemicals they produce or import, and prepare labels and MSDSs to inform downstream users of the hazards and needed protective measures. Haz Com also contains the core OSHA training requirements for informing employees about chemical hazards in the work environment.

Other countries also have developed labeling and MSDS requirements. While these rules are often similar to Haz Com, they differ in various ways, including the specificity of information required to be conveyed to end users. The differing requirements can cause confusion for chemical manufacturers, importers, and employers and employees.

As a result, in 2003 the United Nations adopted the Globally Harmonized System of Classification and Labeling of Chemicals, which standardizes and harmonizes these requirements. Countries are now adopting the Globally Harmonized System and OSHA, through this proposed rule, is looking to do the same.

Many employers are in favor of the rulemaking, seeing it as an opportunity to facilitate international trade and improve the effectiveness of communicating hazard information to employees. Others have raised concerns about having to re-learn a “new” Haz Com rule when many have grown accustomed to complying with the existing requirements.  For its part, OSHA has claimed that adoption of the Globally Harmonized System will:

• Provide consistent information and definitions for hazardous chemicals;
• Address stakeholder concerns regarding the need for a standardized format for MSDSs; and
• Increase understanding of hazardous chemicals by using standardized pictograms and harmonized hazard statements.

We will continue to monitor the status of the proposal and pass along any further updates.

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Click here to read a Q&A on workplace safety and health issues that appeared recently in Employment Law 360. 

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Signaling its renewed focus on regulatory means to address occupational hazards, OSHA is pursuing comprehensive rulemaking to prevent combustible dust explosions. The Agency announced it will be issuing an Advance Notice of Proposed Rulemaking (ANPR) and convening stakeholder meetings to evaluate approaches to regulating combustible dust. Employers with combustible dust hazards in their worksites are encouraged to participate in the rulemaking process.

Combustible dusts are solids ground into fine particles, which can cause a fire or explosion when suspended in air under certain circumstances. Common examples of combustible dusts include metal (aluminum and magnesium), wood, plastic, rubber, coal, flour, sugar, and paper, among others. OSHA has identified a number of industries with combustible dust hazards, including agriculture, chemicals, food, grain, plastics, wood, paper, textiles, pharmaceuticals, tire and rubber manufacturing, and metal processing. While certain OSHA standards provide some protection against combustible dust, for example, Housekeeping (29 CFR 1910.22) and Electrical Equipment in Hazardous Locations (29 CFR 1910.307), OSHA does not have a single comprehensive rule to protect employees from combustible dust explosions.

OSHA’s announcement was expected. Over the last several years, the Agency has published non-mandatory guidance on combustible dust hazards and the prevention of combustible dust explosions. Furthermore, there has been significant congressional interest in the issue. In the last Congress, the House of Representatives passed a bill to force OSHA to issue an interim and final combustible dust standard within 3 and 18 months, respectively. On February 4 of this year, Representatives George Miller, Lynn Woolsey, and John Barrow re-introduced this bill.

Secretary of Labor Solis, in announcing the combustible dust rulemaking, stated that “OSHA is reinvigorating the regulatory process to ensure workers receive the protection they need while also ensuring that employers have the tools needed to make their workplaces safer.” Employers must remain alert to OSHA’s regulatory initiatives and participate in the rulemaking process.

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