On Tuesday, President Trump formally nominated Eugene Scalia to serve as Secretary of Labor. Gene Scalia is the son of late Supreme Court Justice Antonin Scalia. Scalia has prior experience with the Department of Labor where he served as solicitor (chief attorney) under an appointment by former President George W. Bush.
Once Congress returns from summer recess, the Senate Health, Education, Labor and Pensions Committee will hold a confirmation hearing.
On June 27, 2019, California Governor Newsom approved Senate Bill 83. This budget bill contained a provision setting a September 30, 2020 deadline for Cal/OSHA to adopt a revised lead exposure standard. The bill requires Cal/OSHA to “revise the lead standards for purposes of general industry safety orders and construction safety orders, consistent with scientific research and findings.” Specifically, the bill’s objective is to ensure the lead standard “protects the health and safety of employees who engage in lead-related construction work and meets all requirements imposed by the federal Occupational Safety and Health Administration.” While the passage of the bill ensures a revised lead standard in the near future, it’s seen as a win for California industry and employers.
Cal/OSHA has been working to revise the lead standard since 2016 when it first proposed a reduction in the permissible exposure limits for airborne lead from 50 micrograms per cubic meter to 10 micrograms per cubic meter, calculated over an 8-hour, time-weighted average. In addition to working on the revised standard, Cal/OSHA has been preparing a standardized regulatory impact analysis (“SRIA”) that includes economic impact assessments. Cal/OSHA recently submitted that SRIA to the California Department of Finance for review. After the Department of Finance completes its review, Cal/OSHA will submit a rulemaking package to the standards Occupational Safety and Health Standards Board (“board”). The board will then begin formal rulemaking, including public hearings that could be held as soon as the later part of 2019.
The September 30, 2020 deadline set by SB 83 is seen as a compromise. At the time of the passage of SB 83, there was a competing Assembly Bill, AB 457, that would have required Cal/OSHA to complete rulemaking to revise the lead air exposure limit by February 1, 2020. AB 457, also allowed for emergency regulations to be adopted by the board in order to meet the February 1, 2020 deadline. Industry groups in California strongly opposed AB 457, arguing that the February 1, 2020 deadline was unrealistic considering Cal/OSHA has yet to finalize the required economic-impact assessment.
While the passage of Senate Bill 83 pushes the deadline for a revised lead standard to September 30, 2020, this is likely just a delay of the inevitable. Cal/OSHA will likely propose a lead standard to the board that contains the lower airborne exposure limit of 10 micrograms per cubic meter, calculated over an 8-hour, time-weighted average. But the delay may be of benefit to employers as they will now be able to participate in longer and likely more robust rulemaking process.
Last May OSHA began enforcing various provisions of the agency’s requirements of the beryllium standard. Since then, for the construction and shipyard industries, only the permissible exposure limits and short term exposure limit are being enforced until OSHA undertakes additional rulemaking for those industries. It appears OSHA is taking steps toward rulemaking and has announced that it will address a proposed rule on occupational exposure to beryllium in the construction industry at an upcoming Advisory Committee on Construction Safety and Health (“ACCSH”) meeting.
ACCSH acts as an advisory board to the Secretary of Labor and the Assistant Secretary of Labor for Occupational Safety and Health. ACCSH provides guidance to OSHA in the development of standards affecting the construction industry. OSHA is required to consult with ACCSH before the agency proposes standards impacting the construction industry.
ACCSH will hold a teleconference/WebEx meeting September 9, 2019 from 10:00 a.m. to 12:00 p.m, ET, to consider a proposed rule on occupational exposure to beryllium and beryllium compounds in the construction industry.
Additional information, including how to submit comments or to request to speak at this ACCSH meeting can be found in the Federal Register notice.
Under current California law, an employer with an establishment in California must report a serious work-related injury, illness or death that occurs at the employer’s place of employment or in connection with their employment to the Division of Occupational Safety and Health by telephone or email within 8 hours after the employer knows or with diligent inquiry would have known of the death or serious injury or illness.
Serious injury or illness is defined in section 330(h), Title 8 of the California Code of Regulations as “… any injury or illness occurring in a place of employment or in connection with any employment which requires inpatient hospitalization for a period in excess of 24 hours for other than medical observation or in which an employee suffers a loss of any member of the body or suffers any serious degree of permanent disfigurement, but does not include any
injury or illness or death caused by the commission of a Penal Code violation, except the violation of section 385 of the Penal Code, or an accident on a public street or highway.”
A recent bill passed by the California State Legislature would amend that law requiring employers to make such reports immediately by telephone or through an online mechanism established by the division for that purpose. If signed into law, the bill would require that employers be permitted to continue to make such reports by telephone or email until the division has made the online mechanism available.
The legislative history of the bill indicates that the need for the revision is based on a belief that email reporting is problematic. Specifically, “receiving emailed reports of serious injuries and deaths has proved problematic for Cal/OSHA because, unlike telephone reporting, it allows for incomplete accident reports. When an employer reports an injury or fatality by email, it can neglect to provide meaningful information about the workplace incident. When Cal/OSHA receives incomplete information, its ability to promptly initiate an investigation, or take any other action, is significantly curtailed and this impacts Cal/OSHA’s ability to effectively ensure workplace safety. By amending Labor Code Section 6409.1(b) to allow for online reporting of workplace fatalities or serious injuries, AB 1804 will allow Cal/OSHA to implement a more effective and responsive reporting system.”
The bill must now be signed by the California Governor by October 12, 2019 and if signed the law would be effective January 1, 2020.
On July 29th OSHA submitted a draft Request for Information (RFI) to the Office of Management and Budget (OMB) regarding Table 1 in OSHA’s construction standard for silica. If approved by OMB, OSHA intends to issue the RFI in the Federal Register to determine if revisions to Table 1 may be appropriate.
On March 25, 2016, OSHA published a final rule on Occupational Exposure to Respirable Crystalline Silica. The final rule contained two separate standards regulating respirable crystalline silica, one for construction, and one for general industry and maritime. The construction standard includes Table 1: Specified Exposure Control Methods When Working With Materials Containing Crystalline Silica. This table identifies common construction tasks and establishes dust control methods, including respirator usage, that have been shown to be effective in protecting against silica exposure. Construction employers who follow Table 1 are not required to monitor employee exposure to silica and are not subject to the permissible exposure limit (PEL).
According to the Spring Regulatory Agenda the RFI would seek “information on the effectiveness of control measures not currently included for tasks and tools listed in Table 1. The Agency is also interested in tasks and tools involving exposure to respirable crystalline silica that are not currently listed in Table 1, along with information on the effectiveness of dust control methods in limiting worker exposure to respirable crystalline silica when performing those operations.”
If issued, the RFI could eventually pave the way for revisions to Table 1 identifying additional common construction tasks with corresponding dust control methods, thereby easing the burden of construction employers in addressing respirable silica exposure.
On July 18th President Trump announced his intention to nominate Eugene Scalia to replace former Secretary of Labor Alexander Acosta. Gene Scalia is the son of late Supreme Court Justice Antonin Scalia. In 2002, following an appointment by former President George W. Bush, Gene Scalia served as solicitor of the Department of Labor.
Mr. Scalia has a history of fighting agency regulatory actions, including an appeal to the U.S. Court of Appeals for the District of Columbia related to the broadened use of the General Duty Clause to employers. Mr. Scalia was the appellate attorney who argued the case of Secretary of Labor v. SeaWorld before that Court. In that case, one of the primary arguments related to the expanded use of Section 5(a)(1) of the OSH Act, or, as it is more commonly known, the General Duty Clause. Mr. Scalia argued that it was not the intent of the Act to apply to every working scenario such as the work with whales at SeaWorld or football players playing in the NFL. In a 2-1 decision, the Court’s decision upheld the agency’s citation to SeaWorld, however, Judge Kavanaugh (current Supreme Court Justice) wrote a dissent in which he stated, “it is simply not plausible to assert that Congress, when passing the Occupational Safety and Health Act, silently intended to authorize the Department of Labor to eliminate familiar sports and entertainment practices, such as punt returns in the N.F.L., speeding in Nascar, or the whale show at SeaWorld.”
By many, Mr. Scalia would be an asset to the Department of Labor.
On July 10, 2019, U.S. House of Representatives Democrats released a bill that, if passed, would require OSHA to develop a federal standard on workplace heat stress. Under the proposed bill, OSHA would have two years to propose a heat protection standard to protect both indoor and outdoor workers. The bill requires the federal standard be at least as protective as “the most protective heat prevention standard adopted by a State plan[.]” This requirement would likely lead to the federal standard mirroring the California outdoor heat prevention regulation, the first of its kind and the most stringent state standard. The Cal/OSHA heat standard requires certain employers with outdoor places of employment to develop and implement a Heat Injury and Illness Program. Generally, the program requires employers to provide employees with water, shade, training on heat illness signs and symptoms, and to implement written procedures for compliance with the program.
The House bill would also require OSHA to issue an interim rule if the proposed rule is not promulgated within two years. The interim rule would:
In support of the standard, the bill points to the fact that climate change has led to increasing global temperatures. According to the bill, “18 of the 19 hottest years on record have occurred since 2001.” The bill also points to the 2018 National Climate Assessment, which found that “[t]he costs of lower labor productivity under rising temperatures is estimated to reach up to $160,000,000,000 in lost wages per year in the United States by 2090.”
While there is currently no federal standard on heat stress, employers must still consider ways to protect their employees from the heat. OSHA can, and does, cite employers for failing to protect their employees from heat under the general duty clause. Several states – California, Washington, and Minnesota – have developed heat standards under their state plans and the Florida legislature is considering a heat prevention bill. Given the push for the OSHA to develop a heat illness standard and states acting on the issue, employers with outdoor places of employment should consider developing heat illness prevention programs.
This morning President Trump announced Labor Secretary Alex Acosta’s resignation. Secretary Acosta resigned under mounting pressure due to his involvement in a 2008 plea deal involving Jeffrey Epstein.
Patrick Pizzella, who is the current Deputy Secretary of Labor, will become the Acting Secretary of Labor. Pizzella served as Assistant Secretary of Labor for Administration and Management at the Department of Labor from 2001 to 2009.
After receiving over 40 public comments and holding a public meeting on its proposed wildfire smoke emergency regulation, California’s Department of Industrial Relations, Division of Occupational Safety and Health (“DOSH”), has eased some requirements of the proposed rule. (If you would like more information on the proposed regulation, you can check out this previous OSHA Law Blog post). Yet, much of the rule has remained the same.
What Remains the Same
Under the newest version of the proposed rule, the trigger point for when employers must act stays the same. Anytime a workplace has an Air Quality Index (“AQI”) greater than 150 for minute particles, they must adhere to the requirements of the regulations. And despite calls from many industry groups to make the rule applicable only to outdoor workers, DOSH has decided that rule will still apply to indoor workplaces. But like in the original version, the regulation exempts these types of workplaces and operations form the regulation’s requirements:
What Has Changed
The newest version of the rule raises the AQI level at which employers must make respirators mandatory. In the original version of the rule, that level was an AQI greater than 300. Now, respirator use is mandatory when the AQI is greater than 500. But employers must still provide respirators to employees who request them when the AQI is greater than 150 but less than 501.
Additionally, the revised version of the rule adds another exemption to the regulation. Seemingly addressing employer concerns about employees who spend only a small portion of their workday outside, DOSH has exempted from the regulation employees exposed to an AQI greater than 150 “for a total of one hour or less during a shift.”
Next Steps for DOSH
The newest version of the rule will be reviewed by California’s Occupational Safety and Health Standards Board on July 18, 2019. After approval from the Board, the proposed regulation will be submitted to the Office of Administrative Law (“OAL”) for final approval. OAL then has ten calendar days in which to review the emergency regulation and decide whether to approve. After approval, the emergency regulation will go into effect for only 180 days during which time DOSH would proceed with the normal rulemaking process, including a more robust public comment period.
It’s that time of year again…when federal agencies, including OSHA, tell us what is on the horizon for rulemaking activity. This week the spring semiannual regulatory agenda for federal agencies was published. This Regulatory Agenda provides a complete list of all regulatory actions that are under active consideration for promulgation, proposal, or review and covers regulatory actions for over 60 federal departments, agencies, and commissions.
The Regulatory Agenda for the Department of Labor includes a total of twenty regulatory entries for OSHA specific actions. In this year’s regulatory agenda there are nine regulatory actions in the pre-rule stage, which is consistent with the 2018 fall agenda. Five of the regulatory actions are in the proposed rule stage and six of these specific actions are in the final rule stage.
This year it is less about what is on the short term regulatory agenda and more about what has quietly appeared on the agency’s long term regulatory agenda. As part of the agency’s long term regulatory agency rulemkaing OSHA announced rulemaking activity for “Drug Testing Program and Safety Incentives Rule.” It appears that OSHA is attempting to revise a portion of the recently promulgated electronic recordkeeping rule (Improve Tracking of Workplace Injuries and Illnesses) to codify the agency’s position on safety incentive programs and drug testing.
In October 2018, in a memorandum to Regional Administrators, OSHA clarified the agency’s position as to whether certain drug testing policies or safety incentive programs would be considered violations of part 29 C.F.R. § 1904.35(b)(1)(iv). In that memorandum, OSHA stated that
“29 C.F.R. § 1904.35(b)(1)(iv) does not prohibit workplace safety incentive programs or post-incident drug testing. The Department believes that many employers who implement safety incentive programs and/or conduct post-incident drug testing do so to promote workplace safety and health. In addition, evidence that the employer consistently enforces legitimate work rules (whether or not an injury or illness is reported) would demonstrate that the employer is serious about creating a culture of safety, not just the appearance of reducing rates. Action taken under a safety incentive program or post-incident drug testing policy would only violate 29 C.F.R. § 1904.35(b)(1)(iv) if the employer took the action to penalize an employee for reporting a work-related injury or illness rather than for the legitimate purpose of promoting workplace safety and health.”
OSHA has now included revising 29 C.F.R. § 1904.35(b)(1)(iv) to the regulatory agenda in an effort to memorialize its position. According to the regulatory agenda, “OSHA recently clarified, through a memorandum to the field, the agency’s position that 29 CFR 1904.35(b)(1)(iv) does not prohibit post-incident drug testing or safety incentive programs. The agency would propose memorializing OSHA’s position on these issues through changes to 29 CFR 1904.35(b)(1)(iv) related to implementation of post-incident drug testing and safety incentive programs.” The regulatory agenda identifies an anticipated date of September 2020 for the issuance of a Notice of Proposed Rulemaking.
Additional regulatory actions under consideration by OSHA include:
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RULE |
ANTICIPATED AGENCY ACTION |
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Communication Tower Safety |
Complete SBREFA May 2019 |
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Emergency Response |
Initiate SBREFA May 2019 |
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Lockout/Tagout |
Request for Information May 2019 |
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Tree Care |
Initiate SBREFA June 2019 |
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| Update to the Hazard Communication Standard | Notice of Proposed Rulemaking September 2020
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Initiate SBREFA October 2019 | |
| Occupational Exposure to Beryllium and Beryllium Compounds in Construction and Shipyard Sectors | Final Rule December 2019 |
The full federal Unified Agenda and Regulatory Plan can be found online at:
