OSHA Takes Steps to Revise Silica Standard for Construction

On July 29th OSHA submitted a draft Request for Information (RFI) to the Office of Management and Budget (OMB) regarding Table 1 in OSHA’s construction standard for silica. If approved by OMB, OSHA intends to issue the RFI in the Federal Register to determine if revisions to Table 1 may be appropriate.

On March 25, 2016, OSHA published a final rule on Occupational Exposure to Respirable Crystalline Silica. The final rule contained two separate standards regulating respirable crystalline silica, one for construction, and one for general industry and maritime. The construction standard includes Table 1:  Specified Exposure Control Methods When Working With Materials Containing Crystalline Silica. This table identifies common construction tasks and establishes dust control methods, including respirator usage, that have been shown to be effective in protecting against silica exposure. Construction employers who follow Table 1 are not required to monitor employee exposure to silica and are not subject to the permissible exposure limit (PEL).

According to the Spring Regulatory Agenda the RFI would seek “information on the effectiveness of control measures not currently included for tasks and tools listed in Table 1. The Agency is also interested in tasks and tools involving exposure to respirable crystalline silica that are not currently listed in Table 1, along with information on the effectiveness of dust control methods in limiting worker exposure to respirable crystalline silica when performing those operations.”

If issued, the RFI could eventually pave the way for revisions to Table 1 identifying additional common construction tasks with corresponding dust control methods, thereby easing the burden of construction employers in addressing respirable silica exposure.

Trump to Nominate Gene Scalia as Secretary of Labor

On July 18th President Trump announced his intention to nominate Eugene Scalia to replace former Secretary of Labor Alexander Acosta.  Gene Scalia is the son of late Supreme Court Justice Antonin Scalia.  In 2002, following an appointment by former President George W. Bush, Gene Scalia served as solicitor of the Department of Labor.

Mr. Scalia has a history of fighting agency regulatory actions, including an appeal to the U.S. Court of Appeals for the District of Columbia related to the broadened use of the General Duty Clause to employers.  Mr. Scalia was the appellate attorney who argued the case of Secretary of Labor v. SeaWorld before that Court In that case, one of the primary arguments related to the expanded use of Section 5(a)(1) of the OSH Act, or, as it is more commonly known, the General Duty Clause.  Mr. Scalia argued that it was not the intent of the Act to apply to every working scenario such as the work with whales at SeaWorld or football players playing in the NFL.  In a 2-1 decision, the Court’s decision upheld the agency’s citation to SeaWorld, however, Judge Kavanaugh (current Supreme Court Justice) wrote a dissent in which he stated, “it is simply not plausible to assert that Congress, when passing the Occupational Safety and Health Act, silently intended to authorize the Department of Labor to eliminate familiar sports and entertainment practices, such as punt returns in the N.F.L., speeding in Nascar, or the whale show at SeaWorld.”

By many, Mr. Scalia would be an asset to the Department of Labor.

House Democrats Propose Bill Requiring Workplace Heat Standard

On July 10, 2019, U.S. House of Representatives Democrats released a bill that, if passed, would require OSHA to develop a federal standard on workplace heat stress. Under the proposed bill, OSHA would have two years to propose a heat protection standard to protect both indoor and outdoor workers. The bill requires the federal standard be at least as protective as “the most protective heat prevention standard adopted by a State plan[.]” This requirement would likely lead to the federal standard mirroring the California outdoor heat prevention regulation, the first of its kind and the most stringent state standard. The Cal/OSHA heat standard requires certain employers with outdoor places of employment to develop and implement a Heat Injury and Illness Program. Generally, the program requires employers to provide employees with water, shade, training on heat illness signs and symptoms, and to implement written procedures for compliance with the program.

The House bill would also require OSHA to issue an interim rule if the proposed rule is not promulgated within two years. The interim rule would:

  • Establish exposure limits that would trigger protective actions to be taken by employers;
  • Require employees to develop heat-illness prevention programs, to include employee monitoring; providing protective clothing, water, and shade; paid rest breaks; allowing employees time to acclimatize to heat conditions; and having an emergency response plan; and
  • Include protections for employees from discrimination for exercising their rights under the standard.

In support of the standard, the bill points to the fact that climate change has led to increasing global temperatures. According to the bill, “18 of the 19 hottest years on record have occurred since 2001.” The bill also points to the 2018 National Climate Assessment, which found that “[t]he costs of lower labor productivity under rising temperatures is estimated to reach up to $160,000,000,000 in lost wages per year in the United States by 2090.”

While there is currently no federal standard on heat stress, employers must still consider ways to protect their employees from the heat. OSHA can, and does, cite employers for failing to protect their employees from heat under the general duty clause. Several states – California, Washington, and Minnesota – have developed heat standards under their state plans and the Florida legislature is considering a heat prevention bill. Given the push for the OSHA to develop a heat illness standard and states acting on the issue, employers with outdoor places of employment should consider developing heat illness prevention programs.

Secretary of Labor Alex Acosta Resigns

This morning President Trump announced Labor Secretary Alex Acosta’s resignation.  Secretary Acosta resigned under mounting pressure due to his involvement in a 2008 plea deal involving Jeffrey Epstein.

Patrick Pizzella, who is the current Deputy Secretary of Labor, will become the Acting Secretary of Labor. Pizzella served as Assistant Secretary of Labor for Administration and Management at the Department of Labor from 2001 to 2009.

 

 

Cal/OSHA Relaxes Proposed Wildfire Smoke Emergency Regulation

After receiving over 40 public comments and holding a public meeting on its proposed wildfire smoke emergency regulation, California’s Department of Industrial Relations, Division of Occupational Safety and Health (“DOSH”), has eased some requirements of the proposed rule. (If you would like more information on the proposed regulation, you can check out this previous OSHA Law Blog post). Yet, much of the rule has remained the same.

What Remains the Same

Under the newest version of the proposed rule, the trigger point for when employers must act stays the same. Anytime a workplace has an Air Quality Index (“AQI”) greater than 150 for minute particles, they must adhere to the requirements of the regulations. And despite calls from many industry groups to make the rule applicable only to outdoor workers, DOSH has decided that rule will still apply to indoor workplaces. But like in the original version, the regulation exempts these types of workplaces and operations form the regulation’s requirements:

  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.

What Has Changed

The newest version of the rule raises the AQI level at which employers must make respirators mandatory. In the original version of the rule, that level was an AQI greater than 300. Now, respirator use is mandatory when the AQI is greater than 500. But employers must still provide respirators to employees who request them when the AQI is greater than 150 but less than 501.

Additionally, the revised version of the rule adds another exemption to the regulation. Seemingly addressing employer concerns about employees who spend only a small portion of their workday outside, DOSH has exempted from the regulation employees exposed to an AQI greater than 150 “for a total of one hour or less during a shift.”

Next Steps for DOSH

The newest version of the rule will be reviewed by California’s Occupational Safety and Health Standards Board on July 18, 2019. After approval from the Board, the proposed regulation will be submitted to the Office of Administrative Law (“OAL”) for final approval. OAL then has ten calendar days in which to review the emergency regulation and decide whether to approve. After approval, the emergency regulation will go into effect for only 180 days during which time DOSH would proceed with the normal rulemaking process, including a more robust public comment period.

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

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

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

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.

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

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.

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