The latest issue of our weekly Workplace Safety and Health newsletter is available for viewing and contains the following articles:

OSHA, MSHA Proposed Budgets Emphasize Enforcement. Enforcement would be strengthened at OSHA and MSHA under the President’s proposed fiscal year 2016 budget.

MSHA Chief Heralds 5 Years of Progress in Mine Safety. Citing recent positive changes in safety, MSHA chief Joe Main said the foundation is being laid for better safety performance and an improved safety culture in mining.

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To sign up to receive the weekly newsletter, click here and fill out the form, then scroll down and check the box next to “Workplace Safety and Health Weekly Update,” which is the last item in the “Newsletters by Topic” section.  To receive all of Jackson Lewis’ workplace safety and health related news, scroll down even farther and check the box next to “Workplace Safety and Health” under the “Areas of Interest” section.

Recently, Jordan Barab, Deputy Assistant Secretary of Labor for the U.S. Occupational Safety and Health Administration spoke at the U.S. Small Business Labor Safety (OSHA/MSHA) Roundtable meeting held in Washington, DC. Mr. Barab provided an update on OSHA’s regulatory agenda and rulemaking activities that would likely have an impact on small businesses. Mr. Barab divided the regulatory agenda into rulemaking activities that are pending final agency action, are in the proposal or early rulemaking stage, or are reserved for long-term agency action. Those rulemakings that are pending final agency action are at the top of OSHA’s agenda and are being given significant priority.

According to Mr. Barab the following rules are pending final agency action:

• Silica
• Subpart D: Walking Working Surfaces and Personal Fall Protection Systems (Slips, Trips, and Fall Prevention).
• Improve Tracking of Workplace Injuries and Illnesses (also known informally as Electronic Recordkeeping Rule)
• Confined Space in Construction

Regarding the silica rule, Mr. Barab indicated that the standard is “innovative but OSHA is trying to make it user friendly.” OSHA is currently reviewing public comments in response to the proposed rule issued on September 12, 2013 and public hearings held March 18, 2014 through April 4, 2014.

During the meeting, Mr. Barab was asked whether the final rule for Subpart D, Walking Working Surfaces and Personal Fall Protection Systems would cover rolling stock or whether a separate rule regarding fall protection from rolling stock would be initiated. In response, Mr. Barab indicated that it is unlikely that the final rule for Subpart D would address the issue of fall protection and rolling stock.

Mr. Barab noted that of the four final rulemakings, Confined Space in Construction would likely be released first and that the final standard generally aligns with the general industry confined space standard. This is consistent with statements that Dr. David Michaels recently made to ACCOSH. OSHA believes that aligning the confined space in construction standard with the general industry confined space standard will be more appealing to employers given this is a standard they currently implement.

Mr. Barab noted that the following rules are in the proposal stage:

• Beryllium
• Clarification of Continuing Obligation to Maintain Records
• Crane Operator Certification
• Standards Improvement Process

In addition to these rulemakings, OSHA has started the early stages of rulemaking to revise the PSM standard in response to the President’s Executive Order. According to Mr. Barab, OSHA has committed to conducting a Small Business Advocacy Review (SBAR) panel by May 28, 2015. Under the Small Business Regulatory Enforcement Fairness Act, OSHA must hold a SBAR panel before publishing a proposed rule with an Initial Regulatory Flexibility Analysis. This panel consists of small business representatives who are allowed an opportunity to provide recommendations on regulatory alternatives in an effort to reduce the burden on small businesses.

Other rulemakings that are currently in the early stages include Communication Towers and updating existing permissible exposure limits (PELs). OSHA is preparing a Request for Information (RFI) for Communication Towers and issued one for Chemical Management and Permissible Exposure Limits (PELs) on October 10, 2014. Mr. Barab mentioned that the Agency is currently considering whether to extend the deadline for providing information in response to this RFI. Currently the deadline for submission of information is April 8, 2015. Mr. Barab did not give a timeframe for a possible extension.

As for long term agency action, Mr. Barab discussed OSHA’s continued desire to promulgate an Injury and Illness Prevention Program (I2P2) standard. Mr. Barab noted that ultimately the promulgation of such a standard “involved more work than the agency initially anticipated; however, it is not a standard the agency is dropping.” Mr. Barab went on to state that currently OSHA is looking at updating existing guidance documents relating to injury and illness prevention programs. The current guidance, Safety and Health Program Management Guidelines, which was issued in 1989 provides voluntary guidelines on safety and health management practices for employers. Mr. Barab also noted that combustible dust and backover injuries remain long-term agency goals.

In sum, OSHA continues to move forward with significant rulemakings and shows no signs of slowing down during these next two years of this Administration.

The latest issue of our weekly Workplace Safety and Health newsletter is available for viewing and contains the following articles:

Court Holds MSHA Has Jurisdiction over Coal Blending Operation. MSHA’s jurisdiction extends to a Virginia coal blending operation, the U.S. Court of Appeals for the Fourth Circuit, in Richmond, has ruled, rejecting a company’s argument that the Mine Act covers only coal mine operators. Power Fuels, LLC v. Federal Mine Safety & Health, No. 14-1450 (4th Cir. Jan. 27, 2015).

DOL Seeks Public Input on Regulations. The Department of Labor is turning to the public once again for suggestions on which of its existing regulations administered department-wide should be revised or repealed.

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To sign up to receive the weekly newsletter, click here and fill out the form, then scroll down and check the box next to “Workplace Safety and Health Weekly Update,” which is the last item in the “Newsletters by Topic” section.  To receive all of Jackson Lewis’ workplace safety and health related news, scroll down even farther and check the box next to “Workplace Safety and Health” under the “Areas of Interest” section.

In a January 23, 2015 letter to the U.S. Occupational Safety and Health Review Commission (“Review Commission” or “OSHRC”), the agency that adjudicates contested OSHA citations, several unions, including the National Council for Occupational Safety and Health (National COSH), North America’s Building Trades Unions (Building Trades), Change to Win and the United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union (Steelworkers) petitioned the Review Commission to amend its procedural regulations.  These four entities petitioned the Review Commission to amend various procedural regulations, including amending the definition of “affected employee,” clarify that employees may select any person as their representative and narrow the scope of confidential information during settlement proceedings. According to the petition, “[e]ach of the suggested changes would enhance opportunities for employee participating in OSHRC proceedings.”

Employees currently have several abilities to participate in Review Commission proceedings.  Under current procedural regulations, both authorized employee representatives, employees of the cited employer represented by a labor organization, and affected employees, employees of the cited employer may elect party status. 29 C.F.R. § 2200.20.  So current regulations allow both union represented employees and non-union employees of the cited employer to participate in proceedings. Further, similar to federal and state courts, non-parties, such as unions without a collective bargaining agreement with the cited employer, may petition the Review Commission for leave to “intervene” or otherwise participate in the proceedings without permission from the parties to the case.  29 C.F.R. § 2200.21.

In its petition, the unions allege that “employees do not exercise the rights they have been given under the OSH Act….One reason employees often do not exercise their right to participate in OSHRC proceedings is that the Commission’s procedural rules, at least the way they have been applied, create unreasonable obstacles to full employee participation.”

In an effort to address these “obstacles” the petition requests the Review Commission to redefine the definition of “affected employee.”  Rather than limit the affected employee to the cited employer, the petition suggests that an ““affected employee” should be any employee who performs work at the site.”  Therefore, any employee at a multi-employer worksite could choose to participate in the proceedings even if the citations do not pertain to his/her employer.

Further, the petition requests that the Review Commission clarify that employees may select any person as their representative.  It is unclear from the petition what needs to be clarified given that the current regulations allow parties to proceedings to be represented by an attorney “or through another representative who is not an attorney.” 29 C.F.R. § 2200.22.

Lastly, the petition urges the Review Commission to “narrow the scope of confidentiality during settlement proceedings.”  The petition suggests that the confidentiality of information presented during settlement proceedings is too broad and essentially prohibits employees who are a party to a proceeding from “communicating with the public in their efforts to improve their working conditions.” Under current procedural regulations, “all statements made and information presented during the course of settlement proceedings…shall be regarded as confidential and shall not be divulged outside of these proceedings.”  29 C.F.R. § 2200.120(d)(3).  Confidentiality of settlement proceedings encourages all parties to engage in open and free discussions about the merits of the case as well as abatement for the alleged citations.

There has been no indication from the Review Commission how, if at all, the Agency will respond to the petition.

The latest issue of our weekly Workplace Safety and Health newsletter is available for viewing and contains the following articles:

New High Reached in MSHA Discrimination Complaint Filings. The number of discrimination complaints MSHA has filed on behalf of miners reached a new high last year.

Consider Non-Regulatory Alternatives, Small Business Panel on Infectious Diseases Tells OSHA. A majority of representatives on a small business panel convened by OSHA to hear their views on a potential OSHA infectious diseases rule questioned the need for such a rule, but said that if OSHA proposes a regulation for healthcare and related workers, it should consider risk on a sector-by-sector basis and tailor the rule accordingly.

Click here to download the newsletter and read the full articles.

To sign up to receive the weekly newsletter, click here and fill out the form, then scroll down and check the box next to “Workplace Safety and Health Weekly Update,” which is the last item in the “Newsletters by Topic” section.  To receive all of Jackson Lewis’ workplace safety and health related news, scroll down even farther and check the box next to “Workplace Safety and Health” under the “Areas of Interest” section.

OSHA is coming under criticism because of changes it has made to its Safety and Health Achievement Recognition Program (SHARP).  The details were outlined in a memorandum to Regional Administrators dated November 24, 2014.  However, opponents to the changes are upset because the memorandum was not posted on OSHA’s website and the decision to limit the size of employers who are eligible for the SHARP program is being viewed as a disincentive for employers to participate in the program. In addition, states with approved State Plans are required to implement the new consultation procedures.

The November memorandum references the size requirements outlined in the Consultation Policies and Procedures Manual (CPPM) Ch. 8, II for employer eligibility:

The size requirements for participation in SHARP are employers with 250 or fewer onsite employees and fewer than 500 corporate-wide employees.

Enforcing these size limits reverses a February 2012 memorandum in which OSHA allowed employers who did not meet the size requirements to nonetheless be considered for the program with prior approval from the Regional Administrator or State Designee.   In its’ November 24, 2014 memorandum, OSHA states that the reasoning behind this flexible approach was “to consider for SHARP the subsidiaries of larger companies that did not receive adequate support from their parent company for establishing a safety program.”

One of SHARP’s appeals is that participation is free and companies meeting all the eligibility requirements are exempt from programmed OSHA inspections for 2 or 3 years.  The first step in the program is for an employer to request a visit from an OSHA-approved consultation service which then inspects the worksite and any hazards identified during that inspection must be corrected by the employer.  On-Site Consultation Projects and the employer work collaboratively to assist the employer in meeting SHARP standards.  The amount of time required to successfully operate On-site Consultation Projects has led OSHA to the conclusion that it needs to tailor the program by concentrating its focus on small businesses.  According to the memorandum, OSHA “is therefore implementing a more definitive interpretation of the Employer Eligibility requirements.”   Although companies with more than 500 corporate-wide employees are now exempt from participating in the program, this does not include individual franchisees which are not owned by the corporation but are operated as distinct corporate entities.

OSHA has come under further fire because the memorandum applies retroactively.  Companies who are no longer eligible for SHARP will not be grandfathered-in but will instead be encouraged to participate in the Voluntary Protection Program (VPP) which is an alternative cooperative program offered by OSHA aimed at large employers.  Employers wishing to participate in VPP undergo a vigorous evaluation but may also be exempt from programmed OSHA inspections while they maintain VPP status.  OSHA has defended its position, but it also recognizes that it takes time to apply for VPP and the changes to SHARP will result in a backlog.  In a conciliatory move, OSHA is allowing companies who until recently were eligible for SHARP to remain in the program while they await completion of their VPP evaluation, provided they submit their application within a year of the November 2014 memorandum and also that they continue to meet other eligibility requirements.  To learn more about VPP, see https://www.osha.gov/dcsp/vpp.