Delays Again for Crane Operator Certification for Construction Industry

In June we reported that OSHA intended to propose an extension of the November 10, 2017 compliance date for certification of crane operators.  Last Thursday, November 9th, OSHA made it official, announcing in the Federal Register that the deadline for employers to ensure crane operators in the construction industry are certified/qualified has been pushed back to November 10, 2018.  This also extends the employer’s duty to ensure employees are competent to operate a crane safely until the same date.  OSHA feels that this extension is necessary to avoid disruption to the construction industry.

Industry stakeholders have long been concerned that certification by an independent testing organization accredited by a nationally recognized accrediting organization does not ensure the competency of crane operators to do construction work.  Employers have said that they feel additional, site-specific training would be needed to ensure that a crane operator could safely operate a crane.  There has also been controversy surrounding Section 1926.1427(b)(2) which requires that for compliance with the standard, crane certification covers both type and capacity of equipment.

Originally, under the final crane standard published in August, 2010, the compliance deadline was November, 2014.  In late 2014, the compliance deadline was extend three years, to November 10, 2017.  The hope is that this new, one year delay will allow OSHA time to finally address ongoing issues.

Possible Cal/OSHA Regulation Regarding Workplace Violence for the General Industry

In 2014, the Cal/OSHA Division received a petition for a new workplace violence regulation for general industry.  Petition 542, which was originally submitted on behalf of teachers, has been used as the basis for consideration of a general industry standard on workplace violence.  This year, the CA Standards Board, the entity that promulgates new CA health and safety standards, held meetings on whether a general industry workplace violence standard was necessary.

In 2018, it is expected that the Division will draft a proposed regulation regarding workplace violence for general industry. The proposed regulation will likely include requirements similar to the health care workplace violence regulation (this regulation became effective on April 1, 2017) which requires the establishment, implementation and maintenance of a written Workplace Violence Prevention Plan (WVPP).  It is likely the new regulation will also include new recordkeeping requirements, training requirements, and reporting requirements.

It is the Division’s intent to create a single workplace violence regulation for all general industries, including retail, manufacturing, education, banking and food establishments. Significant compliance issues will result if the Division implements a general industry workplace violence regulation. Employers will have an opportunity to publicly comment on any proposed regulation.  We will continue to update the this blog as developments occur.

White House Nominates Scott A. Mugno to Head OSHA

Late last Friday, the White House issued a press release announcing President Trump’s intention to nominate several more key administration officials, including Scott Mugno as Assistant Secretary of Labor, Occupational Safety and Health.

According to the press release,

Mr. Mugno is currently the Vice President for Safety, Sustainability and Vehicle Maintenance at FedEx Ground in Pittsburgh, Pennsylvania.  He was previously the Managing Director for FedEx Express Corporate Safety, Health and Fire Protection in Memphis, Tennessee.  His responsibilities in both those positions included developing, promoting and facilitating the safety and health program and culture.

The White House press release highlights Mr. Mugno’s professional safety related accomplishments by noting that

Mr. Mugno was twice awarded FedEx’s highest honor, the FedEx Five Star Award, for his safety leadership at FedEx Express.

Prior to joining FedEx, Mr. Mugno, served as a Deputy Staff Judge Advocate for the Easter Region U.S. Army Military Traffic Management Command along with other legal positions in the U.S. Army JAG Corps.

Mr. Mugno is well respected among his peers and is viewed as a dedicated safety professional.  His role as a corporate safety director provides him valuable practical knowledge in approaching safety and health in the workplace and, if confirmed, he will be a valuable asset to OSHA.

 

Nomination for Assistant Secretary of Labor for OSHA Expected Soon

It is widely anticipated that President Trump’s announcement of Scott Mugno as his nominee for  the position of Assistant Secretary of Labor for the Occupational Safety and Health Administration (OSHA) is imminent – a position temporarily being filled by Loren Sweatt, the Deputy Assistant Secretary.  Scott Mugno is the VP of Safety, Sustainability and Vehicle Maintenance with FedEx Ground.  He started his career at FedEx Ground in 1994 as a Staff Attorney and has held his current position since 2011.  As Assistant Secretary of Labor, Mr. Mugno would have overall responsibility for OSHA including the regional and area offices tasked with ensuring employer compliance with workplace safety and health standards and regulations.

What Employers Need to Know about OSHA’s Respirable Crystalline Silica Rule for Construction

Full enforcement with the Occupational Safety and Health Administration’s new respirable crystalline silica rule in the construction industry began on October 23, 2017, according to the agency. The silica rule is one of the most comprehensive health standards ever issued for the construction industry and significantly reduces the Permissible Exposure Limit (PEL) for crystalline silica.

In addition, the rule requires construction employers to implement certain engineering and work practice controls and comply with such other requirements as using medical surveillance, adopting a written exposure control plan, and following certain housekeeping practices.  To get the details, click here.

OSHA Still Considering Revising Electronic Recordkeeping Rule

Authored by Ray Perez 

With the December 1, 2017 deadline fast approaching for covered employers to electronically submit injury and illness records to OSHA, the Agency has indicated that it is close to completing its review to the Obama-era Improve Tracking of Workplace Injuries and Illnesses final rule.  In a Status Report filed on October 10, 2017 with U.S. District Court for the Western District of Oklahoma which has stayed litigation over the rule pending further rulemaking, the Department of Justice (“DOJ”) indicated that OSHA continues to develop a Notice of Proposed Rulemaking (“NPRM”) to “reconsider, revise, or remove provisions of the [Rule]” as announced in the July 20, 2017 Office of Information and Regulatory Affairs’ regulatory agenda.

DOJ went on to state that it understands that OSHA has “drafted substantial portions of the NPRM, including draft regulatory text and a summary and explanation of the proposed changes, and that OSHA’s economists have made significant progress on the economic analysis and continue to refine it.  Once the analysis is finalized, the draft NPRM will proceed through the agency clearance process.”

The Status Report gives no indication as to when this process will be completed or when the NPRM will be published.  Many industry groups and the Commerce Department have urged the new administration and OSHA to eliminate provisions under the rule that would make employer injury and illness data publically available online and which would restrict existing employer policies such as safety incentive programs and post-accident drug testing.

Unfortunately, the filing does not reveal what parts of the rule may be subject to revision or removal.  There are some expectations that OSHA will maintain the electronic reporting requirements but will not make the information publically available. OSHA may also eliminate the rule’s anti-retaliation provisions.

We will provide updated information once we know more about any proposed changes to the rule.

OSHA Injury Tracking Application Up & Running

On August 16th we reported that OSHA had suspended user access to its new Injury Tracking Application (“ITA”) that serves as the web portal for the submission of injury and illness information under OSHA’s “Improve Tracking of Workforce Injuries and Illnesses” rule.  The suspension followed a warning by the Department of Homeland Security alerting OSHA to a possible security breach.

The ITA was back up and running within a couple of weeks and an OSHA spokesman reported at the end of August that the National Information Technology Center confirmed that none of the ITA information had been compromised.

For covered employers the deadline for electronic submission of the 2016 300A is December 1, 2017.

OSHA Announces Top Ten Violations

OSHA recently released the top ten violations for fiscal year 2017, which ended September 30.  Generally, this list does not change much from year to year with the top three violations always being fall protection, hazard communication and scaffolding. OSHA noted that not all violations had been added to its reporting system but that the list was not expected to change.

Overall Top Ten Violations for FY 2017 

 

  1. Fall Protection (Construction – 29 CFR 1926.501).  Total of 6,072 violations with frequently violated requirements including failure to provide fall protection for unprotected edges and open sides in residential construction and failure to provide fall protection on low-slope roofs.
  1. Hazard Communication (29 CFR 1910.1200) Total of 4,176 violations with frequently violated requirements for failure to have a written hazard communication program and failure to provide employee access to safety data sheets.
  1. Scaffolding (29 CFR 1926.451) Total of 3,288 violations with the most frequent violations including improper access to surfaces and lack of guardrails.
  1. Respiratory Protection (29 CFR 1910.134) Total of 3,097 violations with the most frequent violations for failure to establish a written respiratory protection program and failure to provide medical evaluations.
  1. Lockout/Tagout (29 CFR 1910.147) Total of 2,877 violations with the most frequent violations for employee training and failure to conduct periodic inspections.
  1. Ladders (Construction – 29 CFR 1926.1053) Total of 2,241 violations with frequent violations including improper use of ladders, damaged ladders, and using the top step.
  1. Powered Industrial Trucks (29 CFR 1910.178) Total of 2,162 violations including employee training and refresher training.
  1. Machine Guarding (29 CFR 1910.212) Total of 1,933 violations with the most frequent for failure to guard points of operation.
  1. Fall Protection—Training (Construction – 29 CFR 1926.503) Total of 1,523 violations with the most frequent for failure to train employees in identifying fall hazards and proper use of fall protection equipment.
  1. Electrical (29 CFR 1910.305) Total of 1,405 violations including temporary wiring in lieu of permanent wiring.

OSHA Announces Enforcement Policy for Construction Silica Standard

In a memorandum issued today from Thomas Galassi, Acting Deputy Assistant Secretary to OSHA Regional Administrators, OSHA has announced how it will handle enforcement of the new Silica Standard for the construction industry, which takes effect on September 23, 2017.

For the first 30 days of enforcement OSHA will not issue citations to those employers who, in good faith, are trying to comply with the requirements of the standard but are unable to reduce exposures below the new permissible exposure limit or are unable to fully comply with Table 1.  Instead, for those employers, OSHA will offer “compliance assistance and outreach” to help employers with “understanding and compliance” of the new standard.  Specifically, “OSHA will pay particular attention to assisting employers in fully and properly implementing the controls in the table.”

If during an OSHA inspection it appears that a particular employer is not making any efforts to comply with the standard, OSHA will conduct air monitoring and possible citations may be issued.

Additionally, the memorandum notes that OSHA will soon be issuing inspection and citation guidance for its compliance officers and that a compliance directive will follow.

 

OSHA Proposes to Extend Crane Operator Certification Requirement

In 2010 OSHA promulgated a final rule regulating cranes and derricks in the construction industry, Cranes and Derricks in Construction, Subpart CC (29 C.F.R. 1926.1400, et al.). Shortly after the final rule was issued OSHA published the Small Entity Compliance Guide on the new standard. Portions of the agency’s guidance created considerable conflict between OSHA and stakeholders involved in the use of cranes, including employers, unions, and firms that offer crane operator training and certification. Specifically, OSHA took the position that an operator is qualified to operator a crane if he is certified for the type and capacity of equipment or for higher-capacity equipment of that type.

In November 2012, the International Union of Operating Engineers (IUOE) petitioned OSHA to reverse its interpretation and to amend the “capacity and type” language in 1926.1427(b)(1)(ii)(B) and 1926.1427(b)(1). Many within the industry believe that crane capacity should not be used as a factor for operator certification. In response to the IUOE’s petition and the concerns of the regulated industry, OSHA held stakeholder meetings in April 2013 to gather additional information. Following those stakeholder meetings, in May 2013 OSHA proposed to extend the compliance date for the crane operator certification and qualification requirements by three years to November 10, 2017.  After a public comment period on the proposed extension, in September 2014, OSHA announced that it was extending the crane operator certification requirements from November 10, 2014 to November 10, 2017, a three year extension. During this three-year period, it was the agency’s intention to develop a new standard that addressed operator qualification requirements including the role of operator certification.

Even if OSHA were to publish a proposed rule on crane operator certification today, the agency would not have enough time to solicit public comment and finalize a new rule by the current November 10, 2017 deadline.  So OSHA is now proposing to further delay the November 10, 2017 deadline by one year to November 10, 2018 to address the stakeholder concerns.

OSHA is accepting public comments until September 29, 2017.

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