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

Judge Questions Proposed Settlement with Coal Company. “Who will guard the guardians?” is the question an administrative law judge (ALJ) raised in a May 13 order denying a Labor Department motion to gain approval of a settlement that had been reached with an Illinois coal producer.

Proposals to Change Whistleblower Law Could Increase
Litigation. OSHA wants to provide better protection for workers who report safety concerns, urging changes in the OSH Act that may increase the amount of whistleblower litigation.

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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.

 

On May 23, 2014 the full 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 six regulatory entries for OSHA-specific actions. Nine of these regulatory actions are in the prerule stage, seven are in the proposed rule stage and ten of these specific actions are in the final rule stage.

Three of the biggest changes to OSHA’s regulatory agenda since November 2013 include shifting the combustible dust rulemaking from a proposed rule to a prerule stage, removing the agency’s goal of issuing a notice of proposed rule for an Injury and Illness Prevention Program rule (I2P2) in September 2014 and adding a proposal for a rule on communication towers.

According to the regulatory agenda, OSHA alleges that “[i]n 2013, the industry experienced a dramatic increase in the number of fatalities occurring during communication tower work, with 13 total fatalities.”  Therefore, OSHA claims that the current general industry and construction standards regulating communication towers do not adequately protect employees. OSHA intends to publish a request for information in June 2014.

Surprisingly, the agency removed I2P2 from an active agency action to a long-term action and removed the September 2014 date for publication of a proposed rule.  Instead, OSHA left the date for publication open and “to be determined.”  This move seems inconsistent with repeated statements from OSHA’s Assistant Secretary of Labor Dr. David Michaels that I2P2 is the agency’s highest or number one priority.

Additional regulatory actions under consideration by OSHA include:

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The full federal Unified Agenda and Regulatory Plan can be found online at:

http://www.reginfo.gov/public/do/eAgendaMain

 

On May 21, 2014, NLRB Associate General Counsel Purcell issued a memorandum to all NLRB field staff announcing the implementation of a joint OSHA-NLRB referral agreement to redirect Charging Parties whose claims are time-barred before OSHA to the NLRB. Section 11 (c) of the Occupational Safety and Health Act requires that complaints be filed with OSHA within thirty (30) days.  By OSHA’s estimate, between 300 and 600 complaints are screened out or dismissed each year because the complaining employee fails to file a charge within 30 days.  Beginning in March 2014, the OSHA Office of Whistleblower Protection Programs instructed OSHA staff to advise complainants who miss the filing deadline of their right to file a Charge with the NLRB within the six-month statute of limitations under the National Labor Relations Act. OSHA’s policy is to advise complainants with untimely charges of the right to file charges with the NLRB, that the statute of limitations for doing so is six months, and that OSHA “recommends that the complainant contact the NLRB as soon as possible to discuss his or her rights.”  OSHA personnel are also to provide the complainant contact information for the nearest NLRB Field Office, the NLRB website, and the NLRB’s toll-free number. NLRB AGC Purcell issued a memorandum to all NLRB field staff on May 21, 2014 announcing the OSHA referral policy, directing staff to be alert for such referrals, and to record the number of OSHA-referred charging parties.   The agreement between OSHA and NLRB builds on the cooperation between the two agencies pursuant to a Memorandum of Understanding signed in 1975 for handling workers’ safety retaliation complaints which might be filed with either or both agencies.  In that MOU, it was agreed that enforcement actions should primarily be taken under the OSHA Act, rather than the National Labor Relations Act.  The new agreement reflects the continuing expansion of the NLRB’s emphasis on protected concerted activity claims, regardless of whether charging parties were involved in any union-related activities.

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

Federal Court Sides with OSHA on Machine Guard Standard. In a split decision, the U.S. Court of Appeals for the Eighth Circuit, in St. Louis, has sided with OSHA on its interpretation of a machine guarding standard, 29 CFR 1910.212(a)(1). Perez v. Loren Cook Company, No. 13-1310 (8th Cir. May 9, 2014). The standard describes methods of machine guarding designed to protect the operator and other employees in the area from hazards, some of which are enumerated.

Mining Association Seeks Stay of Coal Dust Rule. The National Mining Association (NMA) wants MSHA to stay the effective date of its final rule to control miners’ exposure to respirable coal dust pending the outcome of litigation over the rule. However, MSHA quickly denied the NMA request.

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.

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

MSHA’s Final Dust Rule Draws Industry Ire. MSHA has released a new regulation, lowering the amount of permissible coal dust and forcing the use of new technology. The industry believes that the rule is neither justified nor feasible and will kill jobs.

General Duty Clause Use Could Increase, Attorney Warns. An appeals court decision upholding OSHA’s application of the general duty clause in the death of a SeaWorld trainer may embolden the agency to apply it more broadly, an industry lawyer says.

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.

As we get deeper into the second term of President Obama, OSHA’s regulatory agenda is picking up steam.  With the first term focused mainly on increasing enforcement, regulatory initiatives often took a back seat to other initiatives.  Rules that were announced as Agency priorities – such as OSHA’s combustible dust rulemaking and the Injury Illness Prevention Program (“IIPP”) rulemaking – seemed stuck within the halls of the Department of Labor or at the Office of Management and Budget.

Despite this, it seems as though the Agency was busy behind the scenes finalizing its own work on several major rules impacting employers across the country.  We are now starting to see those rules published either as proposed or final Agency regulatory actions.  Just in the last few months, OSHA has published controversial proposals regulating crystalline silica in the workplace and requiring many employers to submit to OSHA their injury and illness logs on a quarterly basis, which the Agency will then post on the internet.  OSHA also just finalized a rule revising its safety standards for electric power generation, transmission, and distribution.  This rule had been under development for over a decade.

By historical standards, this recent flurry of activity on the regulatory front is noteworthy.  However, it is likely that we will see even more regulatory initiatives proposed or finalized over the next few months.  OSHA is looking to finalize a rule that would require employers to affirmatively report to OSHA amputations that occur at the worksite, along with the overnight hospitalization of one employee (instead of the current requirement for reporting for the overnight hospitalization of three or more employees).  Another rule that we could see move involves new health requirements for beryllium.

“All stakeholders need to keep an eye on these new initiatives,” remarks Donna Pryor, a Shareholder in Jackson Lewis’s Workplace Safety and Health practice group.  “Where at first OSHA’s efforts with respect to new rules and regulations lagged behind its enforcement programs, that does not now seem to be the case.”

Stay tuned – there is most assuredly more to come!

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

Coal Companies’ Constitutional Case against MSHA Employees Fails. A district court has rejected a lawsuit brought by several Kentucky coal companies to recover damages against MSHA employees following their refusal to allow the operator to recover mining equipment before it was ruined by flooding.

OSHA Moves to Cut Whistleblower Claim Settlement Time. Looking to shorten from months to weeks the time needed to settle whistleblower complaints, OSHA is expanding use of an alternative dispute resolution process that has been judged a success in two of its regions.

Ask a Jackson Lewis Attorney. Q: Our offer letters state that newly-hired employees must undergo a 90-day “probationary” period, during which they can be terminated for any reason or no reason. We went to a seminar and learned this language is not recommended. What’s wrong with this provision?

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’s standard, 29 C.F.R. § 1926.1427, which sets out operator qualification and certification requirements for cranes used in the construction industry is currently set to take effect on November 10, 2014.  However, after significant concerns among stakeholders regarding these requirements, in February, OSHA proposed a three-year extension to the operator certification deadline and requested public comment on or before March 12, 2014.

OSHA proposed this extension, in part, due to issues pertaining to the requirements in the standard addressing crane operator
certification that arose shortly after OSHA issued the final rule. After the final standard was issued, OSHA took the position that an operator is qualified to operate a particular piece of equipment if the operator is certified for that type and capacity of equipment or for higher-capacity equipment of that type. Therefore, an operator certified to operate a 100-ton hydraulic crane may operate a 50-ton hydraulic crane but not a 200-ton hydraulic crane. OSHA’s interpretation raised concerns for many stakeholders who believe that certification should be limited to the type of crane, not the capacity.

OSHA received over 60 comments in response to its request for public comment with one submission from Crane Institute Certification requesting that OSHA hold a public hearing.

OSHA has now announced that it will hold an informal public hearing on Monday, May 19, 2014 at 9:30 a.m. in the auditorium of the U.S. Department of Labor at 200 Constitution Avenue, N.W., Washington, D.C. 20210.

Individuals who wish to testify at the informal public hearing must submit a notice of intention to appear by April 25, 2014.  Individuals interested in speaking can submit a notice of intention to appear electronically at http://www.regulations.gov and submitting the request to Docket ID-OSHA-2007-0066.  Additionally, notices can be faxed to the OSHA Docket Office at 202-693-1648.

Additional information regarding the informal public hearing can be found online.

https://www.federalregister.gov/articles/2014/04/15/2014-08512/cranes-and-derricks-in-construction-operator-certification?utm_campaign=subscription+mailing+list&utm_medium=email&utm_source=federalregister.gov

 

Background

On June 15, 2005, OSHA proposed to update its existing standards on Electric Power Generation, Transmission, 29 C.F.R. § 1910.269 (Operations and Maintenance) and 29 C.F.R. Part 1926, Subpart V (Construction).  OSHA’s primary objective in revising the two standards was to align and update the rules for the construction of transmission and distribution installations with the rules for operations and maintenance of electric power generation, transmission, and distribution lines and equipment.

On April 1, 2014, almost nine years after the proposed rule, OSHA released a copy of the final rules.  The final rules will be officially published in the Federal Register on April 11, 2014 and most of the final rules provisions will become effective 90 days after the publication – July 10, 2014.  OSHA has delayed the effective date of some provisions, such as requiring fall protection for qualified employees changing locations on poles and similar structures and application of the new requirements for minimum approach distances until April 1, 2015.  However, for the most part employers must be prepared to fully implement the standard by July 10, 2014.

Highlights of Final Rule

Below are highlights of the final rules, which apply for both construction and general industry (operations and maintenance).  In addition to these requirements, OSHA has revised provisions on deenergizing transmission and distribution lines to apply to multiple crews and to deenergizing network protectors. OSHA also revised provisions for operating mechanical equipment near overhead power lines to clarify that the exemption from maintaining the minimum approach distances only applies to the insulated portions of aerial lifts.

Within this rulemaking, OSHA also revised the general industry (§ 1910.137) and added a new construction (§ 1926.97) standard for electrical protective equipment.  The existing construction standard for the design of electrical protective equipment applies only to electric power transmission and distribution work.  OSHA has revised this requirement so that it now applies to all construction work where electrical protective equipment is used.

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The major revisions include removing out dated consensus standards with more performance oriented requirements. However, the rule allows employers the option of compliance with the latest or future versions of consensus standards. The revisions focus on the design  and manufacture of rubber insulating equipment, such as blankets, matting, covers, line hoses, gloves and sleeves and also includes new requirements for the design and manufacture of equipment and insulating barriers.  Additionally, the revisions include care and use requirements, such as a requirement to visually inspect electrical protective equipment before use each day and testing on periodic basis.

Once the final rules are published in the Federal Register, any challenge to the final rules must be filed with a U.S. Court of Appeals within sixty days.  Assuming the rules are published on April 11, 2014, industry members would have until June 9, 2014 to petition for review.  It is too soon tell whether any such challenge will be filed.  Impacted employers should begin to review the final rules and determine whether changes to work practices and procedures will be necessary to come into compliance with the new requirements.

Today, OSHA announced that it is issuing the final rule on Electric Power Generation, Transmission and Distribution.  The final rule will appear in the Federal Register on April 11, 2014.  The rule will become effective 90 days after it appears in the Federal Register. 

The final rule for general industry and construction include, among other things, new or revised provisions on host employers and contractors, training, job briefings, fall protection, insulation and working position of employees working on or near live parts, minimum approach distances, protection from electric arcs, deenergizing transmission and distribution lines and equipment, protective grounding, operating mechanical equipment near overhead power lines, and working in manholes and vaults.

The final rule also revises the general industry and construction standards for electrical protective equipment and also includes new requirements for the safe use and care of electrical protective equipment to complement the equipment design provisions.

A copy of the final rule is posted on OSHA’s website.