OSHA Proposes Revisions to Final Beryllium Standards for Construction and Shipyards

On September 30, 2019, OSHA issued a final rule for Occupational Exposure to Beryllium and Beryllium Compounds in Construction and Shipyards.  Rather than revoke the ancillary provisions for these two industries as anticipated, OSHA  “determined that there is not complete overlap in protections between the standards’ ancillary provisions and other OSHA standards.”

OSHA  delayed the compliance dates for all ancillary provisions of the construction and shipyard standards until September 2020.  OSHA also announced its intent to engage in additional rulemaking to amend the standards for construction and shipyards by “more appropriately tailoring the requirements of the standards to the exposures in these industries.”

On October 8, 2019, OSHA issued a Notice of Proposed Rulemaking (NPRM) proposing revisions of the final standards for construction and shipyard industries to tailor the requirements under the ancillary provisions to the specific industries.

OSHA is proposing changes to ancillary provisions including the written exposure control requirements, engineering and work practice controls, respiratory protection, personal protective equipment, hygiene areas and practices, housekeeping and medical surveillance.  OSHA is broadly revising the requirements in both construction and shipyard industries relating to dermal contact to materials containing beryllium in trace quantities.  In this NPRM, “OSHA is now proposing to remove provisions triggered by dermal contact or beryllium contamination entirely.”

In the NPRM, OSHA explains in detail the agency’s rationale for the proposed revisions. A summary of some of the proposed revisions to the final standards for construction and shipyards is outlined below.

Written Exposure Control Plan

  • Require the written exposure control plan to list of operations and job titles reasonably expected to involve exposure to beryllium (which would include abrasive blasting and welding operations where exposures at or above the action level are reasonably foreseeable).
  • Revoke the requirement for additional lists of operations and job titles involving exposure above the action level (AL) and above the permissible exposure level (PEL) or short term exposure level (STEL).
  • Revoke the requirement that the exposure control plan to include procedures for minimizing cross-contamination.
  • For construction, require employers to establish procedures for restricted access work areas where exposures to beryllium could reasonably exceed the PEL or STEL, such procedures would be implemented by a competent person.
  • For shipyards, require employers to establish regulated areas requiring employers to designate areas where beryllium exposures could exceed the PEL or STEL and limit access to authorized employees.
  • Require both industries to establish procedures in the written exposure control plan to ensure the integrity of each containment (such as tarps).
  • Revoke the requirement for written plans to contain procedures for removing, laundering, storing, cleaning, repairing, and disposing of beryllium contaminated personal protective clothing and equipment.

Engineering Controls and Work Practice Controls

  • Revoke the requirement to implement engineering controls and work practices where exposures are or can reasonably be expected to meet or exceed the action level (AL).
  • Retain, without revision, the requirement that prohibits rotation of employees to different jobs in order to achieve compliance with the PEL.

Respiratory Protection

  • Revoke the requirement for use of respiratory protection during emergencies.

Personal Protective Equipment

  • Revoke the requirement to provide and ensure the use of PPE when there is reasonable expected dermal contact with beryllium.
  • Revoke the requirement that PPE be removed when it becomes visibly contaminated with beryllium.
  • Modify existing language to ensure that PPE is not removed in a manner that disperses beryllium in the air.

Hygiene Areas and Practices

  • Remove paragraph (i) completely from construction and shipyard standards because other existing standards provide many of the same protections.


  • Remove paragraph (j)(1)(general requirements for housekeeping) from construction and shipyard standards, which requires employers to follow the written exposure control plan when cleaning beryllium-contaminated areas.
  • Permitting the use of compressed air for cleaning without a ventilation system in circumstances where there is a limited quantity of dust.

These proposed changes to the construction and shipyard final standards are intended to “appropriately tailor the requirements… to the particular exposures in these industries…; aid compliance and enforcement across the beryllium standards by avoiding inconsistency…; and to clarify certain requirements with respect to materials containing only trace amounts of beryllium.”  OSHA is accepting comments until November 7, 2019.



OSHA Recommends Best Practices to Prevent Whistleblower Retaliation

You might be surprised to learn that the Occupational Safety and Health Administration (OSHA) enforces 22 different whistleblower protection laws. This includes laws governing workplace safety and health at construction, manufacturing, energy generation or distribution and other worksites. It also includes a broad array of laws that regulate hazards and prohibited activities specific to airlines, motor vehicle carriers, nuclear facilities, railroads and maritime and other industries.

These laws prevent employers from retaliating against employees who engage in protected activities, such as reporting workplace hazards, injuries, illnesses or potential violations of the law. They can also protect employees who refuse to violate a law or engage in a hazardous activity.

While employees may report violations to their employers, they may also go directly to OSHA. Employers may not prevent an employee from doing the latter, even if the employee declines to notify a manager or Human Resources. When an employee complains to OSHA, the employer may not take an adverse action that may intimidate or dissuade employees exercising their right to blow the whistle on suspected wrongdoing. Adverse actions may include acts such as termination, layoff, demotion, discipline, threats, blacklisting, reassignment to a less desirable position, reduction of hours, isolation, poor performance reviews, or denial of overtime, promotion or benefits.

In its Recommended Practices for Anti-Retaliation Programs, OSHA advises employers to design and implement programs to (1) receive and respond to employee reports of noncompliance with safety and health or other laws and (2) prevent and address retaliation against employees who voice concern. This extends not only to regular employees, but also to temporary employees, leased workers and contractors, especially those who are controlled by the host employer.

A key best practice OSHA suggests is training employees about their right to report issues without delay to OSHA or an appropriate agency. The agency may be well aware that a report was filed a disgruntled current or former employee, but OSHA must still follow up on a complaint without regard to the aims of the complaining employee. Showing the agency a training regimen that reinforces employee rights can send a positive signal to an investigator who may be unsure of your workplace culture.

OSHA suggests an anti-retaliation program that includes five elements:

  1. Committed managers who lead by example, encourage employees to report concerns and respect confidentiality;
  2. A clearly communicated system for resolving employees’ reported concerns;
  3. A system for receiving and responding to reports of retaliation;
  4. Anti-retaliation for employees and managers; and
  5. Program oversight, which may include regular monitoring or audits that identify your program’s strengths and weaknesses.

OSHA offers a few ways to accomplish these objectives, such as multiple confidential or anonymous channels for complaints, follow up interviews with complaining employees, and anonymous surveys of employees to assess your program. OSHA also recommends incentive programs that reward employees for reporting concerns. Top-level managers should be in the know on the results of these measures and engage employees to find ways to improve whistleblower programs.

For a closer look at OSHA’s recommended practices and the 22 whistleblower statutes it enforces, go to www.whistleblowers.gov or you may call OSHA at 1-800-321-OSHA (6742). If you are unsure of the quality of your antiretaliation program, you may consider a third-party review.

OSHA Finalizes Beryllium Standards for Construction and Shipyard Industries

In January 2017, as a departing gift from the Obama administration, OSHA issued a final rule with three separate standards regulating occupational exposures to beryllium in general industry, construction and shipyards. And, contrary to industry expectations and data in the rulemaking record, OSHA broadened the coverage of the construction and shipyard standards. The three standards lowered the permissible exposure limit and short term exposure limit to beryllium and established ancillary provisions such as the requirement to conduct an exposure assessment, methods for controlling exposure, respiratory protection, personal protective clothing and equipment, housekeeping, medical surveillance, hazard communication and recordkeeping.

As part of the final rule, the new permissible exposure limit went into effect on May 11, 2018 for all industries. On December 12, 2018, OSHA began enforcing most provisions of the beryllium standard for general industry, except for change rooms and showers, which took effect on March 11, 2019 and engineering controls which will take effect on March 10, 2020.

Shortly after the promulgation of the final rule, OSHA announced its intention to undertake additional rulemaking regarding the ancillary provisions applicable to construction and shipyards and announced it would not enforce those provisions until further rulemaking. On June 27, 2017, OSHA published a notice of proposed rulemaking (NPRM) proposing to revoke the ancillary provisions for both the construction and shipyard standards.  The proposal was based on considerations that other standards such as the respiratory, sanitation and other current standards provide adequate protection for the limited employees potentially exposed to beryllium in construction and shipyards. In the NPRM OSHA stated,  “OSHA has evidence that beryllium exposure in these sectors is limited to the following operations: Abrasive blasting in construction, abrasive blasting in shipyards, and welding in shipyards. OSHA has a number of standards already applicable to these operations, including ventilation (29 CFR 1926.57) and mechanical paint removers (29 CFR 1915.34).”  Due to the limited number of employees exposed in construction and shipyards and coverage of other standards regulating abrasive blasting and welding many construction and shipyard stakeholders believed a full beryllium standard for these two industries would result in burdensome requirements but not provide additional protection already afforded by other current standards.

On September 30, 2019, OSHA issued a final rule for Occupational Exposure to Beryllium and Beryllium Compounds in Construction and Shipyards.  Rather than revoke the ancillary provisions for these two industries as anticipated, OSHA  “determined that there is not complete overlap in protections between the standards’ ancillary provisions and other OSHA standards.”  In short, employers in construction and shipyards industries will be required to comply with the final rule for occupational exposure to beryllium issued in January 2017.

OSHA did delay the compliance dates for all ancillary provisions of the construction and shipyard standards until September 2020.  OSHA also announced its intent to engage in additional rulemaking to amend the standards for construction and shipyards by “more appropriately tailoring the requirements of the standards to the exposures in these industries.”

Unfortunately it does not seem likely that OSHA would complete that rulemaking before the September 2020 effective date of the ancillary provisions, which could result in employers in construction and shipyard industries having to establish policies and programs to implement the ancillary requirements, which then later could change.

OSHA Approves New Quantitative Fit Testing Protocols

Pursuant to 29 C.F.R. § 1910.134(f) employees are required to be fit tested prior to wearing tight-fitting respirators and the fit test administered must be using an OSHA-accepted fit test protocol.  Appendix A to § 1910.134 outlines the procedures employers are required to use for fit testing and apply to all OSHA-accepted fit test methods, both Qualitative fit test (QLFT) and Quantitative fit test (QNFT).

Under Appendix A, Part II for § 1910.134, interested parties are able to submit an application to OSHA for approval of a new fit test protocol.  There are currently four available fit testing protocols: Generated Aerosol Quantitative Fit Testing Protocol, Ambient aerosol condensation nuclei counter (CNC) quantitative fit testing protocol (PortaCount), Controlled negative pressure (CNP) quantitative fit testing protocol and Controlled negative pressure (CNP) REDON quantitative fit testing protocol.

In 2014, OSHA received an application for new fit test protocols from TSI Incorporated (TSI).  TSI submitted three fit test protocols:  “Fast-Full” method for elastomeric full-facepiece respirators, “Fast-Half” method for elastomeric half-mask respirators and “Fast-FFR” method for filtering facepiece respirators. The three proposed new fit test protocols were modified and abbreviated versions of the original ambient aerosol CNC protocol.  In October 2016, OSHA issued a proposed notice of rulemaking to add the new protocols and invited public comments.

On September 26, 2019, OSHA issued a final rule approving the new fit testing protocols to be added to Appendix A.  The first is the modified ambient aerosol condensation nuclei counter (CNC) quantitative fit testing protocol for full-facepiece and half-mask elastomeric respirators, the “Fast-Half” and “Fast-Full.” The second new protocol is the modified ambient aerosol CNC quantitative fit testing protocol for filtering facepiece respirators, “Fast-FFR.”

According to OSHA, the major differences between the proposed Fast-Full and Fast-Half methods and the OSHA-approved PortaCount protocol are that the Fast-Full includes only 3 of the 7 current test exercises (i.e. bending, head side-to-side, and head up-and-down) plus one new exercised (i.e., jogging-in-place). According to TSI, the Fast-Full method reduces each exercise duration from 60 seconds to 30 seconds, which results in a total test duration of 2.5 minutes rather than 7.2 minutes.   Similarly, the Fast-FFR method includes 4 of the current test exercises and reduces total exercise time from 7.2 minutes to 2.5 minutes.

These submitted fit test methods were evaluated using ANSI standards and met the required acceptance criteria for test sensitivity, predictive value of a pass, predictive value of a fail, test specificity and kappa statistic. “OSHA determined that the new protocols met the sensitivity, specificity, predictive value, and other criteria outlined in the ANSI annex and will, therefore, provide employees with protections comparable to protections afforded to them by the reference method, which consisted of the standard OSHA exercises listed in Section 1.A. 14 of appendix A of the Respiratory Protection Standard, minus the grimace exercise, in the same order as described in the standard….These are the same test exercises, minus the grimace exercise, that are utilized for both the CNC and CNP protocols.”

These new protocols will serve as alternatives to the four existing quantitative fit testing protocols in Appendix A. OSHA believes that these new protocols will “maintain safety and health protections for workers while providing additional flexibility and reducing compliance burdens.”

The new rule went into effect on September 26, 2019.

Senate Confirms Scalia as Secretary of Labor

Earlier today the Senate confirmed, 53-to-44 , Eugene Scalia, son of late Supreme Court Justice Antonin Scalia, as the next Secretary of Labor. Scalia replaces former Alexander Acosta who resigned in July under mounting pressure due to his involvement in a 2008 plea deal involving Jeffrey Epstein.  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.

Scalia Nomination Clears Senate HELP Committee

This morning the Senate Health, Education, Labor and Pensions (HELP) Committee voted 12-11 along party lines to approve Eugene Scalia’s nomination as Secretary of Labor.  The vote came five days after his confirmation hearing before the HELP Committee on September 19, 2019. This vote advances his nomination to the full Senate where it is expected to be approved.  It is anticipated that the full Senate could vote by the end of the week.

Scalia is a currently a partner with Gibson, Dunn & Crutcher in Washington D.C. and the son of former Supreme Court Justice Antonin Scalia. Scalia previously served as solicitor of the Department of Labor under President George W. Bush.

Trump Officially Nominates Scalia to Head DOL

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.

Stricter Cal/OSHA Standard on Lead Exposure Expected in September 2020

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.

ACCSH September Meeting to Address Proposed Rule for Beryllium in Construction

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.


California Legislature Considers Electronic Notification for Fatalities and Serious Injuries

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.