The Mine Safety and Health Administration (“MSHA”) released its long-anticipated silica rule on Tuesday, April 16, 2024.  (See the rule here) The rule is aimed at reducing miners’ exposure to respirable crystalline silica, otherwise known as silica or quartz dust. The final version of the rule is mostly consistent with the version MSHA proposed last year. It modifies the limits of exposure to crystalline silica and increases existing protections against other airborne particulates at mine sites. The rule will be published in the Federal Register on April 18, 2024, and will take effect in two months.

The rule requires both underground and surface mines to reduce the “permissible exposure limit” for breathable silica from 100 micrograms of silica per cubic meter of air (100 μg/m3) to 50 micrograms (50 μg/m3) during an 8-hour shift. Operators must also begin taking some protective measures where silica levels reach an “action level” of 25 micrograms (25 μg/m3). These changes make MSHA’s standard consistent with the standards set by the Occupational Safety and Health Administration (“OSHA”) in 2016 for factories, oil drilling sites, and construction projects.

The rule also requires metal and non-metal mine operators to establish medical surveillance programs similar to those already required for coal miners under existing standards. These programs provide periodic health examinations at no cost to miners.

Coal mine operators will have one year after the regulation’s effective date to comply with the rule. Metal and non-metal mine operators will have two years following the rule’s effective date to comply with the new requirements.

In a press release announcing the rule, MSHA emphasized the hazard, noting the inhalation of respirable crystalline silica “can cause serious lung and other diseases, such as silicosis, lung cancer, progressive massive fibrosis, chronic bronchitis and kidney disease.” MSHA also explained that exposure to “mixed coal mine dust containing respirable crystalline silica can lead to the development of black lung disease and progressive massive fibrosis.” Based on the evaluation of these hazards and the new controls, MSHA believes that the rule change will result in over 1,000 avoided deaths and almost 4,000 avoided cases of silica-related illnesses.

If you have any questions about this new rule, please contact the Jackson Lewis attorney with whom you regularly work or a member of the Workplace Safety and Health practice group.

The Occupational Safety and Health Administration (OSHA) has released a final rule to restore and expand Obama-era requirements for employers in dozens of designated industries that have worksites with at least 100 employees to submit their injury and illness forms electronically to the agency. The final rule becomes effective on January 1, 2024.

To read this article in its entirety, please click here.

With the recent passage of Senate Bill 592, the Oregon Legislature has dramatically augmented the range of civil penalties on employers who violate Oregon Safe Employment laws. Previously, Oregon law imposed only the minimum civil penalties prescribed under the federal OSHA. Effective May 24, 2023, the minimum penalty for a single serious violation has now nearly quadrupled, from $300 to $1,116, while the minimum penalty for repeated violations has skyrocketed from $200 to $11,162—a difference of more than 5,000 percent.

Severe increases are prescribed for violations resulting in employee fatalities and for failures to correct violations after citation. In cases involving penalties for repeated willful or serious violations, any penalty reduction must be conditioned upon the employer’s agreement to comply with “additional abatement measures as determined by the state agency.”

Small business employers will find it more difficult to obtain any downward adjustment on assessed penalties based on the employers’ size.

The new law substantially broadens the state agency’s investigatory powers and responsibilities. The Director of the Department of Consumer and Business Services is now authorized to conduct a “comprehensive inspection of any place of employment as deemed necessary by the department based upon the prior violation history of the place of employment regarding any state occupational safety or health law, regulation, standard, rule or order.” The director is now required to conduct a comprehensive inspection in cases involving work-related fatalities or whenever three or more willful or repeated violations occur within a one-year period. What constitutes a “comprehensive inspection” now falls within the professional judgment of the inspector from case to case.

The state agency must submit at least annually a report summarizing the total number and amount of penalties assessed, the total number of appeals of citations, violations and penalty assessment, and the total number inspections completed by the department. The first report is due no later than September 15, 2024.

Now is the time for Oregon employers to review their health and safety policies and procedures, identify potential risks–particularly risks associated with any past OSHA violations in the employer’s history, and develop plans to mitigate or eliminate those risks. Employers cited for violations now have greater incentives to appeal those citations and to remain fully informed about their rights and obligations under the Oregon Safe Employment Act.

If you have questions or need assistance with OSHA or safety compliance, inspections and citations, please reach out to the Jackson Lewis attorney with whom you often work, or any member of our Workplace Safety and Health Team.

SB 592, if enacted, would create significant changes to the Oregon Safe Employment Act including:

  • Allowing for “comprehensive inspection of any place of employment as deemed necessary by the department based upon the prior violation history of the place of employment regarding any state occupational safety or health law, regulation, standard, rule or order.” (Note: the bill currently does not include any time limit on the prior violation “look back” period.)
  • Broadening investigation parameters for work-related fatalities and repeat violations.
  • Substantially increasing civil penalties, with annual adjustments based on the CPI.
  • No longer allowing for penalty adjustments based on employer size unless employer agrees to comply with additional abatement measures.

The Bill has passed in the Senate and is progressing in the House. As currently drafted, SB 592 would be effective upon passage.

These proposed changes are significant for a number of reasons. First, allowing for comprehensive inspections means that OR OSHA could have wall-to-wall jurisdiction over an entire worksite, without the need to establish probable cause of a violation, based solely on what the inspector deems necessary. Second, without a defined look back period, an employer with any citation history, no matter how long ago, would be subject to a comprehensive inspection at the discretion of the OR OSHA. Finally, employers should be wary of agreeing to abatement measures simply to reduce the penalty as the cost of the abatement will often exceed the amount of the penalty.

Jackson Lewis attorneys will continue to provide updates on SB 592. If you have questions or need assistance with OSHA or safety compliance, inspections and citations, please reach out to the Jackson Lewis attorney with whom you often work, or any member of our Workplace Safety and Health Team.

Effective April 3, 2023, Oregon OSHA suspended its rules addressing the COVID-19 Public Health Emergency and Amended Work Clothing Rules via Oregon OSHA Administrative Order 1-2023.

The COVID-19 rules have been temporarily suspended as an interim measure until Oregon OSHA implements the permanent rulemaking process to fully repeal the rules, which it intends to do shortly. For those employees who still feel vulnerable to contracting COVID-19, the agency also made temporary amendments that include allowing employees the option to wear face coverings, and requiring employers to supply face coverings at no cost to employees when the employer requires their use.

These changes are in tandem with Oregon Health Authority’s announcement that masks are no longer required in healthcare settings, also effective April 3, 2023.

The Occupational Safety and Health Administration (OSHA) successfully established the existence of an excessive heat hazard for which the agency cited the employer, the Occupational Safety and Health Review Commission (OSHRC) has ruled, resolving a question open since 2019.

To read this article in its entirety, please click here.

Manufacturers’ increasingly advanced robotic systems have made the Occupational Safety and Health Administration’s (OSHA) standard for the Control of Hazardous Energy (Lockout/Tagout) impractical, even obsolete, in many workplaces. The new technology is forcing change in a standard that appears among the top 10 cited by OSHA each year.

To view this article in its entirety, please click here.

Top leaders of the Occupational Safety and Health Administration (OSHA) have detailed new and upcoming enforcement efforts to protect “vulnerable workers” (i.e., immigrant, minority, female, and lower-paid) who may be more vulnerable to workplace hazards.

To read this article in its entirety, please click here.

As Monkeypox (MPX) continues to be an issue throughout California, Cal/OSHA issued guidance to assist in protecting employees. However, this guidance applies only to workplaces covered by the Aerosol Transmissible Diseases (ATD) standard, which is notable because the guidance itself states that “MPX spreads primarily by close or direct contact with infectious rashes, lesions, scabs, or body fluids.” However, the guidance also states that “the virus can become airborne during changing or handling of contaminated linen.

Click here to read more on the California Workplace Law Blog.

This summer is shaping out to be another scorcher and Washington State employers should know about the Department of Labor & Industries (“LNI”) new emergency requirements for heat and smoke protections for outdoor employees effective June 15 through September 29.

Washington’s emergency requirements are meant to help employees avoid heat exhaustion and heat stroke. Covered employees include any worker who must work outside for more than 15 minutes in any 60-minute period, regardless of industry.

Workplace Heat

The emergency rules for workplace temperatures update WAC 296-62-095 – 09560 and employers are responsible for monitoring work site temperatures throughout the day. When temperatures reach 89° employers must ensure these protocols are in place for workers regardless of their clothing type:

  1. Provide enough “suitably cool” water, recommended at 50-60 degrees, for each employee to drink at least a quart an hour;
  2. Provide sufficient shade (or temperature controlled environments like air-conditioned trailer or misting station) that is large enough for, and close enough, to workers;
  3. Encourage and allow workers to take paid preventative cool-down breaks as needed, including standard rest breaks and meal periods (which do not need to be paid unless required under the state wage law); and
  4. Require a 10-minute, paid cool-down break every two hours.

If outdoor employees are required to wear clothing that may cause overheating at lower temperatures, employers should know that the temperature threshold for these requirements may differ. These requirements apply to employees wearing nonbreathable clothing, such as PPE suits, at 52° and 72° for employees wearing double-layer woven clothes, such as jackets, sweatshirts, or coveralls. Employers must train workers and supervisors on these new emergency requirements.

Wildfire Smoke

The new emergency rule for wildfire smoke is codified at WAC 296-62-085. With the unfortunate and increased reality of wildfires, the resulting smoke is also a potential hazard to employees. Under this rule, employers must monitor the Air Quality Index (AQI) for wildfire smoke and implement safety protocols. When the AQI is at 69 or higher, employers are encouraged to limit their workers exposure to smoke. LNI provides some helpful suggestions for limiting exposure:

  • Reducing, rescheduling, or relocating work;
  • Providing enclosed buildings or vehicles where the air is filtered; and
  • Reducing the work intensity or increasing rest periods.

At this AQI level, employers must also: (1) have a written smoke response plan with various elements; (2) determine smoke levels before and periodically during shifts; (3) train employees on wildfire smoke hazards and inform them of available protective measures; and (4) train supervisors on how to respond to health issues caused by smoke.

When the AQI is at 101 or higher, employers must limit workers’ exposure whenever feasible, alert employees to smoke levels, and provide and encourage use of respirators. Also note that protective respirators are required in extreme AQI levels (500+). At all times during the implementation of this emergency rule, if employees show signs of injury or illness related to smoke, employers must monitor to determine whether medical care is needed. Employers cannot prevent workers from seeking medical treatment.

These emergency rules are meant to supplement the permanent annual heat prevention rules that require ready access to at least one quart of drinking water per worker per hour, an outdoor heat exposure safety program with training, and an appropriate response to workers who are experiencing heat-related illness symptoms.

If you have questions about this blog, please reach out to the Jackson Lewis attorney with whom you often work, the authors of this blog, or any member of our Workplace Safety and Health Team.