In an interpretation letter dated June 1, 2015, OSHA answered the question “Under OSHA regulations 29 CFR 1926.95(a) who is responsible for the laundering of fire retarding clothing that is provided to employees?” The section states that protective equipment “shall be provided, used, and maintained in a sanitary and reliable condition” but does not elaborate on how this should be achieved.

The letter clarifies that the standard does not per se prohibit home laundering of FR and arc-rated clothing. However, the employer is responsible for making sure that laundering does not compromise the protective properties of the clothing. According to the letter, “If employers rely on home laundering of the clothing, they must train their employees in proper laundering procedures and techniques, and employers must inspect the clothing on a regular basis to ensure that it is not in need of repair or replacement. If an employer cannot meet these conditions, then the employer is responsible for laundering the FR and arc-rated clothing.” Practically speaking, home laundering is a risky proposition. If an employer is unwilling or unable to comply with the requirements for home laundering, then the employer is responsible for laundering the FR and arc-rated clothing.

Noting that the manufacturing sector experienced more than twice the rate of amputations as that of the entire private sector in 2013, the Occupational Safety and Health Administration has updated its nine-year-old National Emphasis Program (NEP) on amputations. Click here to read the full article by Nickole Winnett, which was published in the August 31st issue of the Workplace Safety & Health Weekly Update.

In what the Occupational Safety and Health Administration described as a collaboration among government, industry, and organized labor, the safety agency has proposed a comprehensive rule to reduce exposure to beryllium among employees in general industry. Read more.

OSHA’s National Emphasis Program (“NEP”) on Amputations has been in effect since 2006 but on August 13th the Agency issued an updated NEP (CPL 03-00-019) that significantly expands the industries targeted for inspections.  The updated NEP applies to general industry workplaces in which any machinery or equipment likely to cause amputations is present.  According to the NEP, targeted inspections will include an evaluation of employee exposures during operations such as normal operations; clearing jams; making adjustments while machinery is running; cleaning, oiling or greasing machines or machine pans; and locking out machinery to prevent accidental start-up.

Under the NEP, amputation is defined as a “traumatic loss of limb or other external body part.” Amputations include a part, such as a limb or appendage that has been severed, cut off, amputated (either completely or partially); fingertip amputation with or without bone loss; medical amputations resulting from irreparable damage; amputations of body parts that have since been reattached.  Amputations do not include avulsions, enucleations, deglovings, scalping, severed ears, or broken or chipped teeth.

The NEP on Amputations focuses on industries which have a high number and a high rate of amputations or manufacturing plants where workers have suffered amputations in the past five years.  BLS data shows that in 2013, 2000 workers in the manufacturing industry suffered amputations – a figure two times higher than the amputations reported by all of private industry.  A total of 80 manufacturing industry groups are covered under the NEP and are now targeted for inspections; 49 NAICS groups were added to the list of industries that may be inspected under the NEP.  In setting parameters for its targeting methodology and industry scope, the updated NEP incorporates the most recent data available from OSHA’s Information System (“OIS”), OSHA’s Integrated Management and Information System (“OIS”), the Bureau of Labor Statistics (“BLS”), and the 2012 NAICS codes/titles.

The updated NEP also incorporates the recent changes to OSHA’s recording and reporting injury and illness requirements which went into effect on January 1, 2015 for states under federal OSHA jurisdiction.  Under this NEP on Amputations, if an amputation is reported by an employer whose business falls within one of the NAICS codes listed in the NEP, they will be subject to an inspection under the NEP.

According to the NEP, each Regional and Area Office is required to implement a 90-day outreach program that supports the purpose of the NEP and notifies industry groups and others of the changes, but there are no specifics on exactly how this will be accomplished.

One saving grace is new establishments added based on targeting methodology and the use of NAICS codes will be offered outreach prior to inspection.

To read more or find out if your industry is covered, click here.

For those of you with operations in California, you don’t want to miss Jackson Lewis’ upcoming complimentary webinar on avoiding Cal/OSHA’s most commonly violated standard and developing an effective Injury and Illness Prevention Program.  For details and to register, click here to see the posting on our California Workplace Law Blog.

On July 20, 2015, OSHA published a long awaited Directive on the revised Hazard Communication Standard (“HCS”), Inspection Procedures for the Hazard Communication Standard (HCS 2012), CPL 02-02-079. The Directive is intended to provide inspection and enforcement guidance to compliance officers regarding the final Hazard Communication Standard published in March 2012. However, the Directive also serves as a valuable tool to employers implementing the requirements on the revised Hazard Communication Standard. The 124-page Directive provides guidance in the areas of Hazard Classification, Labels, Safety Data Sheets (“SDSs”) and Employee Training.

The revisions to the Hazard Communication standard in 2012 were based on the Globally Harmonized System of Classification and Labelling of Chemicals (GHS Revision 3, 2009). The Directive cautions employers who may wish to comply with GHS Revision 4 or future versions because according to OSHA those revisions may have major differences with the standard and therefore may not be as stringent as the current requirements. If an employer relies on GHS Revision 4 or future versions and there are major differences resulting in a less stringent application of the current requirements, OSHA has instructed compliance officers to issue citations.

Multi-Employer Worksites

The Hazard Communication standard “applies to any chemical which is known to be present in the workplace in such a manner that employees may be exposed under normal conditions of use or in a foreseeable emergency.” 29 C.F.R. § 1910.1200(b)(2) (emphasis added). In the Directive OSHA addresses how the scope of the standard applies to multi-employer worksites. Specifically, OSHA states, “if an employer is aware that his/her employees are exposed to chemicals brought onto a multi-employer worksite by other employer(s) or if service personnel are exposed to natural gas during furnace repair” then the standard applies and an employer whose employees are exposed to such chemicals known to be present must include information about the hazards of those chemicals in the hazard communication program.

The Directive instructs compliance officer to ensure that an employer’s written hazard communication program addresses “method(s) to provide the other employers on-site access to SDSs for each hazardous chemical the other employer(s)’ employees may be exposed.” Additionally, the written program must include how employers will inform other employers about any precautionary measure to protect employees and how employers will inform other employers about the labeling system used.

DOT Labeling

One area that provides employers needed guidance is the interplay between labeling under the HCS and other federal agencies, specifically the Department of Transportation (“DOT”). In the Directive OSHA considers the DOT diamond-shaped placards that contain hazard symbols to be pictograms and therefore in compliance with the requirements of the standard.

According to DOT, the HCS pictograms are not in conflict with a DOT label. Therefore, “OSHA will allow labels to contain both DOT pictograms (labels as they are referred to by DOT) and the HCS pictograms for the same hazard.” In the future, OSHA will revise Appendix C, C.2.3.3 to reflect this change in policy.

According to OSHA, manufacturers, importers or distributors who must comply with both DOT and HCS requirements have two options: (1) use only the DOT label for the hazard (which OSHA will consider to be compliant for a pictogram) or (2) use both the DOT label and the HCS pictogram for the hazard. However, for hazards that do not require a DOT label, there must be a HCS pictogram to be compliant with the hazard communication standard requirements.

Training

Under the Hazard Communication standard, employers are required to train their employees on the hazardous chemicals in the workplace, labeling, SDSs, and measures that employees can take to protect themselves when using hazardous chemicals, such as personal protective equipment. While the standard does not dictate how or in what fashion employers must provide this training, according to the new Directive, “use of computer-based training by itself would not be sufficient to meet the intent of the standard’s various training requirements. Employees must have the opportunity to ask questions and receive responses in a timely manner.” Therefore, employers relying solely on computer-based training should consider adding a component of training that would allow employees time to ask questions.

Additionally, the Directive advises compliance officers that “[i]f employees do not speak English and are given work instructions in a foreign language, the training must be provided in that language.” Based on this enforcement guidance, employers can anticipate that compliance officers will begin to question how employees are trained and whether such training is provided in a language understood by employees. If an employer trains employees solely in English then it may ultimately have to prove to OSHA that the employees understood the training.

Temporary Workers

The new Directive also covers guidance on OSHA’s enforcement initiative for temporary workers and instructs compliance officers to review contracts between staffing agencies and host employers “to determine if they set out the training responsibilities of both parties.” While employers are not required to revise their contracts to contain such information, during an inspection OSHA will try to determine if such responsibilities have been clearly communicated between a host employer and a staffing agency.

OSHA expects that staffing agencies will provide general training on the HCS requirements and that host employers will provide the site-specific training on the chemicals and hazards at the worksite where temporary employees will work and will supply the appropriate personal protective equipment. While these are the agency’s expectations, staffing agencies and host employers are free to make alternative arrangements so long as temporary employees are provided equivalent HCS training as the host employer’s employees.

General Duty Clause – Chemicals with no Permissible Exposure Limit (“PEL”)

The Directive instructs compliance officers to consider using the requirements of HCS, specifically the SDSs, to support a general duty clause, or 5(a)(1) violation for chemicals with no OSHA PEL.

According to OSHA, “[e]mployers should consider the information in the SDS along with their knowledge of actual conditions in their workplaces to determine whether they must take additional steps to protect employees.”

The Directive suggests that compliance officers consider the information contained in a SDS and determine whether employers have taken appropriate steps, including engineering controls, personal protective equipment, and personal protective clothing to protect employees for overexposures.

 

The extensive Directive covers each aspect of the standard’s requirements and provides compliance officers with a road map for citations where employers are found to be in violation of the requirements. A copy of the Directive can be found online.

 

In 2012, the U.S. Court of Appeals for the District of Columbia held that OSHA could not issue citations for failing to record an injury or illness beyond the six-month statute of limitations set out in the statute. AKM LLC d/b/a Volks Constructors v. Sec’y of Labor, 675 F.3d 752 (D.C. Cir. 2012).

Unhappy with the unfavorable ruling, OSHA added agency action to its Regulatory Agenda for “Clarification of Employer’s Continuing Obligation to Make and Maintain Accurate Records of Each Recordable Injury and Illness” and on July 29, 2015, OSHA issued a Notice of Proposed Rulemaking.

According to OSHA this proposed rule is meant to “clarify that the duty to make and maintain an accurate record of an injury or illness continues for as long as the employer must keep and make available records for the year in which the injury or illness occurred. The duty does not expire if the employer fails to create the necessary records when first required to do so.”  In short, this agency action is an attempt by OSHA to undo the holding in the Volks case.

OSHA claims that no new obligations are created through this rulemaking yet proposes to revise the language of various recordkeeping requirements, including 1904.29(b)(3) as follows:

How quickly must each injury or illness be recorded? You must enter each and every recordable injury or illness on the OSHA 300 Log and on a 301 Incident Report within seven (7) calendar days of receiving information that the recordable injury or illness occurred. A failure to meet this deadline does not extinguish your continuing obligation to make a record of the injury or illness and to maintain accurate records of all recordable injuries and illnesses in accordance with the requirements of this part. This obligation continues throughout the entire record retention period described in Sec. 1904.33.

Public comments to this proposed rule are due on or before September 27, 2015. A copy of the proposed rule can be found online.

Authored by:  Linda Otaigbe

OSHA has recently issued several memoranda updating guidance on its Process Safety Management (“PSM”) standard. On June 5, 2015, OSHA issued a memorandum to Regional Administrators explaining how inspectors should enforce recognized and generally accepted good engineering practices (“RAGAGEP”) requirements. Among other things, OSHA explained that when an employer’s internal standards are more stringent than the relevant published RAGAGEP and the employer fails to follow its own more stringent internal requirements, OSHA may cite the employer under the relevant section of the PSM standard. A copy of the June 5, 2015 memorandum can be found online.

Also on June 5th, OSHA issued a memorandum to Regional Administrators revising its enforcement policy on the concentration that a chemical present in a process must have in order to determine whether the chemical is at or above the threshold quantity listed in Appendix A of the PSM standard. Recognizing the ambiguity that exists for the 126 out of 137 chemicals that do not have a minimum concentration listed along with their chemical names, OSHA has decided that a 1% concentration test is appropriate for employers to determine if the chemical in the process is at or above threshold limits and therefore covered by PSM. Thus, the new enforcement policy is as follows:

In determining whether a process involves a chemical (whether pure or in a mixture) at or above the specified threshold quantities listed in Appendix A, the employer shall calculate:

(a) the total weight of any chemical in the process at a concentration that meets or exceeds the concentration listed for that chemical in Appendix A, and

(b) with respect to chemicals for which no concentration is specified in Appendix A, the total weight of the chemical in the process at a concentration of one percent or greater.  However, the employer need not include the weight of such chemicals in any portion of the process in which the partial pressure of the chemical in the vapor space under handling or storage conditions is less than 10 millimeters of mercury (mm Hg).  The employer shall document this partial pressure determination.

In determining the weight of a chemical present in a mixture, only the weight of the chemical itself, exclusive of any solvent, solution, or carrier is counted.

A copy of this June 5, 2015 memorandum, which provides examples to illustrate the new policy, is available here.

OSHA issued its third memorandum related to PSM on July 22, 2015. This memorandum revises OSHA’s interpretation of the retail facilities exemption of the standard by expanding the number of retail facilities that are covered. Prior to this change, “an establishment was exempt from PSM coverage if it derived more than 50 percent of its income from direct sales of highly hazardous chemicals to the end user,” otherwise known as the 50 percent test. Now, the retail facilities exception applies only to “facilities, or the portions of facilities, engaged in retail trade as defined by the current and any future updates to sectors 44 and 45 of the NAICS Manual.” The facilities that are exempt under sectors 44 and 45 of the NAICS Manual include food and beverage stores, electronics and appliance stores, and general merchandise stores. A copy of the July 22, 2015 memorandum can be found here.

On May 4, 2015, OSHA published the Confined Spaces in Construction standard, 29 C.F.R 1926, Subpart AA.  The new standard is effective August 3, 2015.  Several interested stakeholders petitioned the agency for a delay in the August enforcement date citing the  need for additional time to train employees and obtain the necessary equipment to comply with the new requirements.

On July 8, 2015, OSHA issued a memorandum to Regional Administrators indicating that it “will not issue citations to an employer making good faith efforts to comply with the new standard”  between August 3, 2015 to October 2, 2015.   In order to establish good faith efforts, employers must either have provided training in compliance with the new standard, 1926.1207, or training under the previous requirement, 1926.21(b)(6)(i).

According to the memorandum, OSHA will consider whether an employer is engaged in good faith efforts by considering:

  • If employers have not trained employees under the new requirements, whether such training is scheduled to be conducted.
  • If employers do not have the necessary equipment, such as personal protective equipment, to comply with the new standard, whether such equipment has been ordered and is using alternative measures to protect employees.
  • If employers have made any additional efforts to train employees about confined spaces and protect them for the hazards of confined spaces.

Full enforcement of the new Confined Spaces in Construction standard will begin on October 3, 2015.  A copy of the memorandum can be found online.