Two Massachusetts contractors were operating as a single employer at a worksite in Massachusetts when at least two employees of a roofing crew fell from a wooden plank in October 2014, an Occupational Safety and Health Review Commission administrative law judge has ruled.  To read the full article, written by Brad Hammock, click here.

In February 2013, OSHA issued an interpretation letter in response to a request from the United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, which clarified that employees at a non-union worksite could elect to have a non-employee who is “affiliated with a union” or with a “community organization” to act as their walk-around representative during OSHA inspections.  This clarification was based on the Agency’s interpretation of § 1903.8(c) which allows a third-party, such as an industrial hygienist or safety engineer to accompany an OSHA compliance officer during an inspection, when the compliance officer believes there is “good cause” for the third-party to be present.

OSHA expanded this regulation to permit union representatives to accompany OSHA during inspections of non-union worksites.  OSHA claimed that the regulation allowed such third parties when it was“reasonably necessary.” For example, when they will make a positive contribution the inspection, in cases where the representative has experience and skill in evaluating similar working conditions, or when he or she is fluent in the language of non-English speaking workers and would facilitate useful interactions between the compliance officer and the workers.

This interpretation letter was recently challenged in the U.S. District Court for the Northern District of Texas alleging that OSHA’s interpretation of this regulation was an expansion of the regulation and should have required public notice and comment rulemaking.  In early February, the Court denied, in part, OSHA’s motion to dismiss the lawsuit.  In denying the Agency’s motion the Court signaled that it agreed the interpretation letter was improper Agency action and should have been promulgated by public notice and an opportunity to provide comment.

On April 27, 2017, the legal challenge was voluntarily dismissed since OSHA had agreed to rescind the interpretation letter and remove the guidance from its Field Operations Manual.

The interpretation letter is now marked as “OSHA Archived” and is no longer the policy of the agency.

On April 19, 2017, the Department of Industrial Relations for the State of California issued an important update to Cal/OSHA’s new Respirable Crystalline Silica Standard for Construction.  The standard is substantially similar to Federal OSHA’s new rules for silica.  The new standard is found under Title 8 section 1532.3 of the California Code of Regulations and like the federal rule was set to go into effect on June 23, 2017.

However, federal OSHA decided to delay enforcement of the silica rule so that it has more time to provide guidance to employers due to the unique nature of the requirements.  Cal/OSHA has decided to follow this lead and will not enforce the new requirements until September 23, 2017.  Cal/OSHA has also acknowledged recent legal challenges to the federal silica rule and has stated that it will reevaluate the rule in light of any changes due to the litigation.

Employers in California must keep in mind that they are still subject to Cal/OSHA’s new permissible exposure limit for respirable crystalline silica of 0.05 milligrams per cubic meter (0.05 mg/M3), found in Title 8 section 5155, Table AC-1, which went into effect on October 17, 2016.  In addition, employers must continue to comply with the requirements set forth under Title 8 section 1530.1 to control employee exposures to dust created by operations conducted on concrete or masonry materials.

Please contact a Jackson Lewis attorney with any questions.

Fatalities from falls continue to be a leading cause of death in the construction industry, and the Occupational Safety and Health Administration is focusing on the dangers with its “Stand-Down” campaign on fall prevention. The annual campaign, scheduled for May 8 to May 12 this year, is to put the focus on reducing fall-related fatalities in the workplace.  To read the full article, written by Tressi Codaro, click here.

Earlier today, OSHA issued a memorandum to all Regional Administrators informing them that “we have decided to delay enforcement of this standard [1926.1153] until September 23, 2017.” The agency noted that the additional time is necessary for the development of guidance materials and training for compliance officers. OSHA explained that it is currently developing educational materials that will soon be provided to the Regional Administrators and their staff.

The standard’s requirements were to be in effect beginning June 23, 2017.  The construction industry now has until September 23, 2017 before compliance with OSHA’s new silica standard for construction takes effect.

 

Yesterday President Trump signed H.J. Res 83, which finalized the Congressional Review Act (“CRA”) process and nullified OSHA’s rule “Clarification of Employer’s Continuing Obligation to Make and Maintain Accurate Records of Each Recordable Injury and Illness,” informally referred to as the “Volks” rule.

Under the CRA once the joint resolution of disapproval of the rule is signed by the President the “rule shall not take effect (or continue).” Further, OSHA is now prohibited from promulgating a rule “in substantially the same form” as the disapproved rule.

This means that OSHA is prohibited from issuing employers citations for failing to record injuries or illnesses beyond the six-month statute of limitations set out in the OSH Act, which is precisely what the U.S. Court of Appeals for the District of Columbia held when it decided the Volks decision. AKM LLC d/b/a Volks Constructors v. Sec’y of Labor, 675 F.3d 752 (D.C. Cir. 2012).

While OSHA is prohibited from issuing citations beyond the six-month statute of limitations, employers are still required to maintain injury and illness records for 5 years.  And during that 5-year time period, employers should continue to update their OSHA 300 Logs when new or additional information is discovered that may impact a determination of recordability.

In some of his first public comments since taking office, Department of Labor Acting Solicitor Nicholas Geale has signaled a shift in policies, telling attendees at a Georgetown University Law Center event that his department will “listen to the regulated community a little more” from a position of a “little bit more humility.”  To read the full article, written by Brad Hammock, click here.

As previously mentioned, healthcare employers in California must comply with a host of new workplace safety requirements, effective April 1, 2017, on preventing workplace violence. The new requirements include written workplace violence prevention plans, additional recordkeeping, and preventive training, among other things.  To read our special report on all that this regulation entails, click here.