The Occupational Safety and Health Administration plans to inspect at least 1,260 establishments under its site-specific targeting (“SST”) program for 2013. Details are here.
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.
Click here for an interesting article from Construction Executive magazine on the OSHA landscape as it relates to the construction industry.
An OSHA compliance directive requiring contractors performing residential construction comply with the residential fall protection standard will take effect as scheduled on June 16, 2011. The Standard (29 C.F.R. § 1926.501(b)(13), Duty to Have Fall Protection) generally requires that guardrails, safety nets or personal fall arrest systems be used on residential jobsites that are more than six feet off the ground.
Adopted in 1994, the Standard requires guardrails, safety nets or personal fall arrest systems in residential construction. It contained the following exception, “When the employer can demonstrate that it is infeasible or creates a greater hazard to use these systems, the employer shall develop and implement a fall protection plan which meets [certain] requirements….” The employer bears the “burden of establishing that it is appropriate to implement a fall protection plan which complies with [the Standard] for a particular workplace situation, in lieu of implementing any of those systems.”
In June 1999, OSHA issued Directive STD 03-00-001, instructing OSHA officials not to commence enforcement of the Standard against an employer if the employer used slide guards or other fall-protection systems that were included in the 1999 Directive. In 2010, however, the Secretary issued Directive STD 03-11-002, rescinding the 1999 Directive and authorizing enforcement of the Standard as written.
In National Roofing Contractors Ass’n v. U.S. Dep’t of Labor, No. 11-1340 (7th Cir. Apr. 7, 2011), rejecting a challenge seeking to enjoin implementation of the 2010 Directive, the federal appeals court in Chicago ruled the 2010 Directive was an exercise of the DOL’s prosecutorial discretion, rather than an “occupational safety and health standard.” Therefore, contrary to the plaintiffs’ argument, the 2010 Directive is not subject to judicial review pursuant to 29 U.S.C. § 655(f). Thus, the Court dismissed the plaintiffs’ petition for review and stay of enforcement of the Standard.
Employers take note. For those that choose one or more “alternate fall protection measures,” ensure such measures meet or exceed the OSHA's fall protection standard and reflect that in your fall protection programs. Furthermore, be prepared to explain to compliance officers how you came to the decision to implement the alternative measures.
A special thanks to Mei Fung So, who assisted in the preparation of this post.
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.
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.
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.
Citing the high number of construction fatalities in Texas, Secretary of Labor Hilda Solis announced recently that OSHA will start a new enforcement initiative targeting the construction industry in that state. Secretary Solis made the announcement in San Antonio at the annual conference of the American Society of Safety Engineers. Construction employers in Texas should take note of this new initiative and ensure that they continue to be fully compliant with OSHA standards.
While there are few details of the new enforcement initiative available, Secretary Solis stated that:
- Beginning in July, OSHA will increase the number of inspectors in Texas; and
- Inspectors will be authorized to launch an immediate investigation of a construction worksite, whenever they observe “unsafe scaffolds, fall risks, trenches or other hazards.”
Secretary Solis stated that in 2008, there were 67 construction fatalities in Texas and in 2009 there already have been 33 fatalities reported. According to the Secretary, more workers die in Texas than in any other state.
This initiative is just one part of OSHA’s expanded enforcement efforts under the new Labor Secretary. OSHA will be hiring over 100 new inspectors and issuing five new National Emphasis Programs. In San Antonio, Secretary Solis reiterated her commitment to more enforcement: “As I have said since my first day on the job – the U.S. Department of Labor is back in the enforcement business.”
We will, of course, keep you informed as more details of this and other enforcement initiatives become available.