Drug Testing & Safety Incentive Rulemaking on Long Term Regulatory Agenda for OSHA

By Tressi L. Cordaro on

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:

 

RULE

  

ANTICIPATED AGENCY ACTION
 

Communication Tower Safety

  

Complete SBREFA May 2019
 

Emergency Response

  

Initiate SBREFA May 2019
 

Lockout/Tagout

  

Request for Information May 2019
 

Tree Care

  

Initiate SBREFA June 2019
Update to the Hazard Communication Standard Notice of Proposed Rulemaking September 2020

 
Prevention of Workplace Violence in Health Care and Social Assistance
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:

http://www.reginfo.gov/public/do/eAgendaMain

OSHA Requests Information on Potential Changes to Lockout/Tagout Standard Including Addressing Robotic Technology

By Trever L. Neuroth and Courtney M. Malveaux on

OSHA’s Lockout/Tagout Standard at 29 C.F.R. 1910.147 regulates the control of exposure to unexpected energization during service and maintenance on machines or equipment. On May 18, 2019, OSHA issued a Request for Information (RFI) seeking “information regarding two areas where modernizing the Lockout/Tagout standard might better promote worker safety without additional burdens to employers: control circuit type devices and robotics.”

Control Circuit Type Devices

OSHA’s Lockout/Tagout standard currently requires that all sources of energy, including energy stored in the machine itself, be controlled during servicing and maintenance of machines and equipment using an energy-isolating device (EID). But control circuit type devices are specifically excluded from OSHA’s definition of an EID. Because of technological advances since the standard was issued in 1989, OSHA has recognized that control circuit type devices may be at least as safe as EIDs. OSHA requests information, data, and comments that would assist the agency in determining under what conditions control circuit type devices could safely be used for the control of hazardous energy.

Robotics

When OSHA adopted the Lockout/Tagout standard in 1989, the agency could not have contemplated the recent and rapid advancement in robotic systems. These systems can now move independently and adapt to new circumstances and information in a workplace – – machines that “think” while they work.

Enforcement of the standard when applied to robotics can have serious consequences. OSHA can penalize “Serious” violations up to $13,260 per infraction. An even more significant threat lies not in monetary penalties, but in abatement requirements. If the agency requires a manufacturer to discontinue the use of its robotic systems, such a move could debilitate operations.

Strict adherence to the standard could introduce logistical problems. Some newer systems have such precise calibrations that deenergizing them could introduce inaccuracies that would render the system ineffective. In other cases, deenergized systems incur costly slowdowns or shutdowns, making operations prohibitively expensive, and possibly less safe. To deal with this, many robotic systems have been designed to undergo maintenance without deenergizing them in a safe manner, a potential violation of the standard.

Increasingly, manufacturers and other employers have asked OSHA to embrace safe robotic systems, often through requests for variances from the standard. OSHA may grant a variance to an employer if it can demonstrate that the infeasibility of deenergization and the safety features that make maintenance of an energized system as safe as or even safer than adherence to the standard.

In response to these developments, OSHA is requesting comment from stakeholders on a potential update to the standard to accommodate the use of the evolving technology of robotics, as well as the use of control-circuit type devices to isolate energy.

Interested stakeholders may submit comments until August 18, 2019 at https://www.regulations.gov.

Jackson Lewis attorneys advise and represent manufacturers and other employers on compliance with Lockout/Tagout and other workplace safety standards.

House Pushes OSHA to Create a Standard Concerning Workplace Violence in the Healthcare Sector

By Trever L. Neuroth on

Members of the House of Representatives recently introduced legislation that would require the Department of Labor (“DOL”) to promulgate a standard addressing workplace violence in the healthcare and social service industries. Under the bill, the standard would need to include requirements for employers in the healthcare and social service industries to develop comprehensive plans protecting workers from violence, investigate workplace violence incidents, provide training to employees, and prohibit acts of retaliation against an employee who reports violence or threats. But, despite having 110 co-sponsors, the bill has yet to be scheduled for a vote.

In spite of Congress not voting on its proposed legislation, the House Appropriations Committee did not miss an opportunity to admonish OSHA for not moving quickly to develop a standard addressing workplace violence in the healthcare industry. In a Committee Report, it stated that OSHA needs to make development of that standard a “top priority” and expressed its concern by noting

“[t]he Committee is deeply concerned that OSHA is failing to move forward to develop and issue needed standards on major safety and health problems. One issue of particular concern is workplace violence, a serious and growing problem that has reached epidemic levels.”

In December 2016, issued a Federal Register notice seeking information from the regulated community about issues that might be considered in developing a standard, including the scope of any standard and the types of administrative or engineering controls that might be required. To date, there has been little movement in the rulemaking process since OSHA has yet to complete a required small business review and there is no estimated timeline for issuing a proposed or final rule.

Only time will tell if the House will be able to accelerate OSHA’s rulemaking. But employers should be aware that several states, including California, already have standards in place regulating workplace violence for the healthcare industry.. And, while there is no federal standard in place, OSHA may still issue citations under the general duty clause for healthcare and social employers who do not protect their employees from workplace violence. In a recent case, the Occupational Safety and Health Review Commission upheld such a citation. Jackson Lewis recommends that employers in the healthcare industry review their current policies to ensure they are addressing workplace violence.

Review Commission Down to One Commissioner. With No Quorum, Decisions Come to a Halt.

By Trever L. Neuroth on

In 2018 and the early part of 2019, there has been a flurry of interesting decisions from the Occupational Safety and Health Review Commission (“Commission”). The decisions have ranged from a case clarifying Secretary of Labor’s burden for a repeat citation to two decisions on the general duty clause, one sustaining a citation involving workplace violence and one reversing a citation on heat stress. Several of these decisions have given employers reason to rejoice. But with Commissioner Cynthia Atwood’s term ending at the end of April 2019 and Chairwoman Heather MacDougal’s announcement that she would be leaving the Commission, the Commission is now down to just one member, Commissioner James Sullivan, Jr.

So, what does this mean for cases being heard in front of the Commission? Well, in short, it means that written decisions from the Commission’s three-member review panel will come to a stop. The Occupational Safety and Health Act requires that the Commission have a quorum of at least two members to issue final decisions. Commissioner Sullivan can still designate cases for review but no action can be taken on pending cases without a quorum.

While the lack of a quorum at the Commission will mean a standstill for final Commission decisions, it does not mean that employers can just let citations they receive sit. Employers must still issue notices of contest to citations they wish to challenge within 15 business days of receipt. The matter will still be heard by an Administrative Law Judge (“ALJ”) in its normal course. The only effect the lack of a quorum will have on employers is if they decide to appeal an adverse decision issued by an ALJ. In that case, employers should be prepared to wait or, if the ALJ decision is not designated for review, the employer can appeal the decision straight to federal court.

 

 

CAL/OSHA Proposes Emergency Regulation on Smoke-Protection after Destructive Wildfire Season

By Trever L. Neuroth on

In the wake of the most destructive wildfire season in California history, California’s Department of Industrial Relations, Division of Occupational Safety and Health (“DOSH”), has issued a proposed emergency regulation intended to protect workers from wildfire smoke. On April 15th, 2019, DOSH released the proposed regulation and scheduled a hearing to discuss the regulation for May 8th, 2019 in Oakland.

The proposed regulation covers both indoor and outdoor workers exposed to an air quality index (“AQI”) for particulate matter 2.5 (“PM2.5”) exceeding a level of 150, and where a wildfire smoke advisory has been issued or there is a “realistic possibility that employees may be exposed to wildfire smoke.” However, the regulation sets out exemptions for the following types of workplaces and operations:

  1. operations with enclosed structures “where the air is filtered by a mechanical ventilation system and employee exposure to outdoor or unfiltered air is effectively limited;”
  2. operations involving enclosed vehicles in which the air is filtered by a cabin air filter;
  3. operations where the employer demonstrates that the AQI for PM2.5 does not exceed 150; and
  4. firefighters and emergency response personnel.

Under the proposed rule, employers would be required to take protective measures when the AQI for PM2.5 exceeds a level of 150, which falls into the “unhealthy” category according to the U.S. Environmental Protection Agency. The regulation requires employers to identify harmful exposures “whenever an employee may reasonably be expected to be exposed to an AQI of greater than 150[.]” In such instances, the employers would be required to have a system in place for communicating smoke hazards to its employees. Additionally, the proposed regulation calls for employers to develop an effective training program regarding the hazards of wildfire smoke and how to combat those hazards. Finally, the proposed regulation would require employers to develop engineering and administrative controls to address wildfire smoke, including providing employees with respirators.

Under California’s emergency rulemaking process, DOSH must provide notice of the regulation before submitting it to the Office of Administrative Law (“OAL”) for approval. After providing notice, interested parties have five calendar days to submit comments. OAL then has ten calendar days in which to review the emergency regulation and make a decision. If approved, the emergency regulation will go into effect for 180 days during which time DOSH will proceed with the normal rulemaking process, including a more robust public comment period.

Given the abbreviated emergency regulation process, employers in California should be prepared to comply with the proposed regulation this wildfire season, which is rapidly approaching.

The Heat is Off… Review Commission Reverses Decision in Heat Stress Case

By Trever L. Neuroth on

On February 28, 2019, the Occupational Safety and Health Review Commission (OSHRC) issued a much anticipated decision in the case of Secretary of Labor v. A.H. Sturgill Roofing, Inc. The case involved two citations, one brought by OSHA under Section 5(a)(1), the general duty clause, that alleged Sturgill exposed its employees to “excessive heat” and another alleging the company failed to provided adequate heat-related training under 29 CFR 1926.21(b)(2). After hearing oral arguments and taking outside comments from interested parties, the Commission, in a 2-1 decision, reversed the administrative law judge’s order affirming the citations. The Commission held OSHA had failed to establish the existence of a hazard or feasible means of abatement. Most interesting was the Commission’s criticism of OSHA’s use of the general duty clause instead setting standards. In a footnote the Commission wrote, “[w]hile practical considerations may have lead OSHA, over the years, to rely on the general duty clause in lieu of setting standards, the provision seems to have increasingly become more of a “gotcha” and “catch all” for the agency to utilize, which as a practical matter often leaves employers confused as to what is required of them.”

The backdrop for the Sturgill case was the death of a temporary employee after he suffered a heat stroke on his first day on the job. The employee was a 60-year-old man with “various preexisting medical conditions[.]” The work being done consisted of removing a building’s existing roof so a new roof could be installed. At the hottest part of the day, the heat index was 85°F, which was in the “caution” category of the National Weather Service’s heat advisory chart.

In order to prove a violation of the general duty clause, OSHA must show: 1) a condition or activity in the workplace presented a hazard; (2) the employer or its industry recognized the hazard; (3) the hazard was causing or likely to cause death or serious physical harm; and (4) a feasible and effective means existed to eliminate or materially reduce the hazard. Arcadian Corp., 20 BNA OSHC 2001, 2007 (No. 93-0628, 2004). In Sturgill, the employer argued that the judge erred in finding the presence of a hazard because there was no “excessive heat” at the worksite. The Commission agreed.

To prove a hazard under the general duty clause, the Secretary has to show employees were exposed to a significant risk of harm. The Commission held that the Secretary did not meet this burden and that the judged erred in relying on the NWS Heat Index chart to establish a hazard. The NWS Heat Index chart sets out four warning levels—caution, extreme caution, danger, and extreme danger— these levels indicate the “likelihood of heat disorders with prolonged exposure or strenuous activity.” The Commission held the Secretary did not prove that the employees suffered prolonged exposure or that their work could be considered strenuous activity. Further, the Commission held that the NWS Heat Index chart’s label of “caution” “simply does not connote a significant risk of harm.”

The Commission went on to address the Secretary’s arguments that the employee’s death itself was evidence of a hazard. It found this argument to be “unfounded” holding that Sturgill had no knowledge of the employee’s preexisting medical conditions that made him more susceptible to becoming ill. Additionally, Sturgill was constrained by law in its ability to ask the employee about his medical conditions.

Next, the Commission found the Secretary failed to establish feasible abatement measures. In its citation, OSHA listed five suggested abatement measures:

(1) implementing an “acclimatization plan”;

(2) requiring employees to wear loose fitting, reflective clothing;

(3) imposing a “formalized work-rest regimen”;

(4) imposing a “formalized hydration policy” that requires employees to drink water at regular intervals; and

(5) monitoring employees for signs of a heat illness.

The Commission found that these five abatement measures were presented as alternative means of abatement, meaning that the Secretary would need to show that Sturgill did not implement any of these measures. Sturgill argued that it had utilized an acclimatization program by given new employees less strenuous tasks and allowing them to take additional breaks. Citing another recent general duty clause decision, the Commission held that the Secretary failed to “‘show the specific additional measures’ required to abate the hazard.” Mid-South Waffles, Inc., No. 13-1022, slip op. at 12 (OSHRC Feb. 15, 2019).

While Sturgill may give employers reason to let out a sigh of relief, there are still questions left open. What if the heat index had been in the extreme danger range? What if Sturgill did not have an informal acclimatization program? What if the employee hadn’t had any preexisting medical conditions? Because these cases can be very fact specific, it would be wise for employers to consider the need for a heat-related illness safety program, especially as the days get hotter and longer during the summer months.

OSHA Requests Information for Use of Powered Industrial Trucks in Maritime, Construction and General Industry

By Tressi L. Cordaro on

On March 11, 2019, OSHA issued a Request for Information (RFI) in the Federal Register seeking comments and information from stakeholders regarding the use of powered industrial trucks (PITs) for maritime (1915.120, 1917.43, 1918.65) construction, (1926.602(c), (d)), and general industries (1910.178). OSHA is considering revising current standards regarding powered industrial trucks and this information will assist the agency in determining what actions, if any, it will take in revising these standards.

The initial powered industrial truck standard, 1910.178, was adopted in 1971 for general industry and was based on the existing American National Standards Institute’s (ANSI) Safety Standard for Powered Industrial Trucks B56.1 and the National Fire Protection Association’s (NFPA) standard for Type Designation, Areas of Use, Maintenance and Operation of Powered Industrial Trucks, NFPA 505.  OSHA has revised the the general industry standard only once in 1998.  However, the ANSI and NFPA consensus standards have been updated and revised multiple times since the initial promulgation of OSHA’s rule.  Both consensus standards have 2018 versions. The ANSI B56.1 standard includes requirements currently not found in the OSHA standards such as a requirement that operator training cover hazards, including symptoms of exposure, from carbon monoxide produced by internal combustion engines, a requirement to consider noise exposure of personnel in the work area, and a requirement for stopping distances when descending grades. Similarly, the 2018 NFPA 505 includes an additional 8 designated types of trucks not currently found in OSHA’s standards.

OSHA is requesting information from the public to determine what changes, if any, should be made to the powered industrial truck requirements in all industries.  Specifically OSHA is  seeking public comment “on what aspects of the powered industrial trucks standards are effective as well as those that may be outdated, inefficient, unnecessary, or overly burdensome, and how those provisions might be repealed, replaced, or modified while maintaining or improving worker safety.”

The RFI seeks information in various categories and outlines specific questions for each category of information requested such as:

  • Types of Powered Industrial Trucks
    • The types of trucks used in an employers fleet, such as types, the number of employees assigned to operate these trucks, what types of activities the trucks are being used for
    • Other types of trucks OSHA should consider including in a future standard
  • Truck Operations, Maintenance, and Training
    • Is in training performed in-house or is it contracted out
    • If in-house training is performed do you purchase modules or develop  your own
    • Who provides the training
    • Are OSHA’s current training requirements adequate or excessive
    • Does your workplace have a training program that you think is more effective than what OSHA currently requires
  • Incidents and Injuries
    • What are the most common types of incidents and injuries involving PITs
    • Do incidents vary by type of truck and if so how
  • Consensus Standards
    • Does compliance with ANSI/ITSDF B56.1a-2018 address most hazards encountered with PITS
    • Is it preferable to the current OSHA standards
    • Are there any hazards that ANSI does not address
    • Are employers currently in compliance with NFPA 505-2018
  • Compliance Issues
    • Should OSHA grandfather older equipment manufactured before a certain date
    • How many older PITSs are you using
    • How many PITS do you use that do not have seat belts
    • What is the average life span of a powered industrial truck

OSHA is accepting comments until June 10, 2019 and comments can be submitted electronically at Regulations.gov using Docket No. OSHA-2018-0008.  Comments can also be submitted via facsimile or regular mail and additional information on submission of comments can be found in the Federal Register.

OSHA Issues Enforcement Guidance for Crane Operator Certification Requirements

By Tressi L. Cordaro on

On February 7, 2019  the Cranes and Derricks in Construction: Operator Qualifications final rule became effective, requiring employers using cranes in the construction industry to document their evaluation of their crane operators.  That same day OSHA issued temporary enforcement guidance indicating that while it will still enforce the requirement that employers evaluate their operators before allowing them to operate cranes it is going to provide additional time for employers to begin to document the evaluations. According to the memorandum issued to all Regional Administrators and State Plan Designees,

“OSHA will evaluate good faith efforts taken by employers in their attempt to meet the new documentation requirements for operators of cranes used in construction. During this period, OSHA intends to offer compliance assistance, in lieu of enforcement, for those employers who have evaluated operators in accord with the final rule and are making good faith efforts to comply with the new documentation requirement. If, upon inspection, it is determined that an employer has failed to make sufficient efforts to comply, OSHA should cite for that deficiency.”

Employers operating cranes in the construction industry who must evaluate their crane operators under the new requirement should take some efforts toward documenting those evaluations.

The Hidden Costs of an OSHA Citation

By Courtney M. Malveaux on

Congress took employers by surprise when it increased Occupational Safety and Health Administration (“OSHA”) penalties nearly 80 percent in 2016. Today, a Serious violation can fetch a maximum penalty of $13,260, and a Willful or Repeat violation can cost up to $132,598. Citations often include multiple items, which can multiply these figures.

When construction companies or other industrial employers receive Serious citations, they often rush into an informal conference with OSHA, without considering potential legal defenses they can raise. When the agency representative offers a large monetary penalty reduction in settlement, it can sound like a good deal. But saving several thousand dollars and moving on quickly may cost much more over the long term.

For many employers – – especially in the construction industry – – the greatest hidden cost is the loss of business opportunity. Many construction companies bid to prequalify or perform work for federal or state Departments of Transportation or other agencies. Agencies commonly ask prospective contractors to report Serious citations they have received. When a prospective contractor exceeds a preset threshold, the agency awards it to another, sometimes costing the contractor hundreds of millions of dollars of work.

Large energy, chemical and manufacturing companies can have similar demands, and will not do business with contractors with too many Serious violations on their records. They also judge applicants on their Experience Modification Ratios (“EMR”), which can be based on illnesses and injuries recorded on OSHA 300 forms.

Taking a cut on the monetary penalty while allowing OSHA to enter a Final Order with a violation on record can also set an employer up for a potential “Repeat” violation, which can lead to potential tenfold penalty increases if OSHA finds a repeated violation of the same standard or same activity, usually within a three-year period. Large employers with complex operations and multiple worksites are particularly vulnerable to “Repeat” violations, and generally they are the employers that receive penalties exceeding $1 million.

A “Serious” designation may prove more costly than the few thousand dollars saved by early settlement. Taking a critical look at the legal merits of the citation – – and considering a contest if a viable defense is available – – is often the smart play.

Jackson Lewis attorneys are available to advise and represent employers facing OSHA citations.

Senate Hearing on Presidential Nominees Including OSHA

By Tressi L. Cordaro on

On January 30th the Senate Health, Education, Labor and Pensions (HELP) Committee announced that it would hold a hearing on February 6th for several of President Trump’s nominees, including Scott Mugno, the President’s nominee for Assistant Secretary of Labor for OSHA.

Mugno was first nominated in 2017 and a confirmation hearing was held before the HELP Committee in December 2017.  After failing to bring his nomination to a vote before the expiration of the Senate term, he was renominated in 2018 and then was renominated again earlier this year when the Senate failed to vote the second time.

This hearing is a markup so additional hearing testimony is not expected from the nominees listed on the hearing agenda.  The expectation would be that the nominees would clear the committee, however, there remain concerns that Mugno’s confirmation is unlikely due to the current political environment.

The upcoming hearing will include other Department of Labor nominees as well, such as Cheryl Stanton, the President’s nominee for Administrator of the Department of Labor’s Wage and Hour Division.

 

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