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

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

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

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

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

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

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.

 

OSHA Issues Final Rule Revising Electronic Recordkeeping Regulation

Today OSHA published the final rule revising the Improve Tracking of Workplace Injuries and Illnesses regulation promulgated under the Obama administration.  The final rule aligns with the proposed rule and rescinds the requirements for establishments with 250 or more employees to electronically file information from OSHA Forms 300 and 301. As is currently the requirement, these establishments will continue to submit information from their Form 300A.  The final rule now requires all covered employers to electronically file submit through OSHA’s Injury Tracking Application (ITA) only the 300A Form.

In the final rule, OSHA emphasized,

Elimination of the requirement that establishments with 250 or more employees submit information electronically from their OSHA Forms 300 and 301 – a requirement that has not yet been enforced – does not change any employer’s obligation to complete and retain injury and illness records under OSHA’s regulations for recording and reporting occupational injuries and illnesses. The final rule also does not add to or change the recording criteria or definitions for these records.

The agency received 1,880 comments to the proposed rule and some commenters expressed concerns over the possible publication of the electronic information submitted to OSHA.  In response, OSHA stated that “…the agency takes the position that these data are exempt from public disclosure under FOIA.”  Other commenters raised concerns over the application of the regulation to employer drug testing and incentive programs.  OSHA made clear that the regulation does not ban drug testing or prohibit incident-based incentive programs.  OSHA stated that Section 1904.35(b)(1)(iv) of the regulation

 …merely prohibits employers from implementing these programs to penalize workers “for reporting a work-related injury or illness.” Id. (emphasis
added). On October 11, 2018, OSHA issued a memorandum that explained this regulatory text and OSHA’s position on workplace incentive programs and post-incident drug testing. See U.S. Dep’t of Labor, Clarification of OSHA’s Position on Workplace Safety Incentive Programs and Post-Incident Drug Testing Under 29 CFR § 1904.35(b)(1)(iv) (Oct. 11, 2018).

Additionally, under the final rule OSHA is amending the regulation to require covered employers to submit their Employer Identification Number (EIN) electronically along as part of their submission to the agency. According to OSHA, “many commenters agreed with OSHA that collection of the EIN would enhance the utility of the data and therefore improve worker safety and health. Several commenters provided specific examples of how the EIN can be used by OSHA for research purposes, such as identifying employers with patterns of injuries…and matching against other databases that contain the EIN to add characteristics to the data….”

The regulation now requires that for each establishment that is subject to the electronic filing requirements, the employer must provide the EIN used by the establishment.  The compliance  date for employers providing their EIN is March 2, 2020.  So, for the 2018 300A submissions that are due to be electronically filed no later than March 2, 2019 the EIN information will not be required.  Beginning March 2, 2020, OSHA will require employers to provide the EIN for each establishment filing the 2019 300A Form.

While these revisions are generally supported by employers, not all interested parties support the revisions to the Obama era regulation.  Some labor groups have raised the concern that since the review and approval of this final rule by the Office of Information and Regulatory Affairs (OIRA) occurred on January 18, 2019 it was conducted during the government shutdown when OIRA lacked funding.  And, since OIRA is funded from the  Treasury and General Government Appropriations, which has not been appropriated by Congress, it violated the Antideficiency Act, which prohibits the government from spending if funds have not been appropriated by Congress.  It is unclear whether any party will take legal action, but it seems to be something considered by those who oppose the revisions to the regulation.

 

U.S. House Committee to Focus on Workforce Protections

Signaling a renewed emphasis on workforce protections at the opening of the 116th Congress, the U.S. House of Representatives has changed the name of its committee with jurisdiction over labor matters back to the Committee on Education and Labor. It was called the Committee on Education and the Workforce when Republicans held the majority in the House. The Committee is headed by Chairman Robert C. Scott (D-Va.).

Click here to read the full article.

Starting January 24th Employers Face Higher OSHA Penalties

Despite no federal funding, it appears that the Office of Federal Register is operational.  Today, the Federal Register published the Federal Civil Penalties Inflation Adjustment Act Annual Adjustments for 2019. This final rule increases civil penalties the Department of Labor assesses including those assessed by OSHA.  The rule is effective today and the increased penalty rates will apply to any penalties assessed after the effective date of the rule.  So beginning tomorrow, OSHA civil penalties will increase.

Employers who have open and ongoing OSHA inspections can expect that any citations issued by OSHA after today will reflect the increased penalties.

The new 2019 maximum penalties are as follows:

  • Other-than-Serious: $13,260
  • Serious: $13,260
  • Repeat : $132,589
  • Willful: $132,589

Reminder to Employers to Post and Electronically File 300A Forms

For employers who are required to maintain work-related injury and illness records, its that time of year again. Employers covered by OSHA’s recordkeeping rule are required to prepare and post the OSHA Form 300A, “Summary of Work-Related Injuries and Illnesses,” beginning February 1 and keep the form posted until April 30.  The form must be posted at each establishment covered, in a conspicuous place where notices to employees are customarily posted.

Prior to posting, a company executive must review the OSHA 300A and certify that “he or she has examined the OSHA 300 Log and that he or she reasonably believes, based on his or her knowledge of the process by which the information was recorded, that the annual summary is correct and complete.”

Under OSHA’s rule, a company executive can be one of the following:  (1) an owner of the company (only if the company is a sole proprietorship or partnership); (2) an officer of the corporation; (3) the highest ranking company official working at the establishment; or (4) the immediate supervisor of the highest ranking company official working at the establishment.

OSHA can cite an employer who fails to post the OSHA Form 300A as required.  Employers should take steps now to ensure they are fully compliant.

Additionally, for those employers covered by OSHA’s Improve Tracking of Workplace Injuries and Illnesses regulation, this year the electronic submission of each establishment’s 2018 300A Annual Summary is required to be filed no later than March 2, 2019 using the Injury Tracking Application on OSHA’s website.  This date differs from past years as the phase in period for the regulation comes to an end.  For each year hereafter, the 300A will be required to be electronically filed no later than March 2.

Since last year OSHA  has also required those employers in state plans that have not adopted the Improve Tracking of Workplace Injuries and Illnesses requirements to submit their 300A Forms.  Although the agency has acknowledged that since OSHA does not have jurisdiction in those states with state plans, it is prohibited from enforcing the regulation and can not issue citations to employers for failing to electronically submit the 300A, and since those certain state plans have yet to adopt the regulation they are equally prohibited from enforcing the requirement and can not issue citations to employers. Be sure to check with your state plan to determine whether they have fully adopted the new requirements.

More information, including a section on Frequently Asked Questions, on the electronic submission of the 300A Forms can be found on OSHA’s website.

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