Over the last several years, Federal OSHA has become increasingly active with “policing” state approved plans – states that develop and operate their own job safety and health programs.  Recently, Cal/OSHA has come under fire for how it classifies a repeat citation.

Currently, Cal/OSHA classifies a repeat violation as

a violation where the employer has corrected, or indicated correction of an earlier violation, for which a citation was issued, and upon a later inspection is found to have committed the same violation again within a period of three years immediately preceding the latter violation. For the purpose of considering whether a violation is repeated, a repeat citation issued to employers having fixed establishments (e.g., factories, terminals, stores . . .) will be limited to the cited establishment; for employers engaged in businesses having no fixed establishments (e.g., construction, painting, excavation . . .) a repeat violation will be based on prior violations cited within the same Region of the Division.

Cal. Code Regs. tit. 8, § 334

In short, for a fixed establishment, such as a factory, Cal/OSHA limits a repeat citation to a violation occurring only at that establishment.  For non-fixed establishments, such as construction, a repeat citation is based on prior violation occurring only within the same region.

This definition is at odds with how Federal OSHA treats a repeat citation.  Federal OSHA will issue a repeat citation if an employer has been cited previously for the same or substantially similar hazard anywhere within federal jurisdiction.  For example, if an employer is cited in New York for failing to have a forklift operator trained, that same employer is susceptible to a repeat citation for the same violation in Texas.  Currently, Federal OSHA only considers an employer’s violation history within the past five years.

Federal OSHA is pressuring Cal/OSHA to align with the federal repeat criteria and base a repeat classification off prior violations statewide.  Cal/OSHA has yet to propose regulatory language revising the definition of a repeat.  However, in an effort to solicit public comment on the timing and geographic requirements for a repeat citation, Cal/OSHA will hold a public meeting from 10:00 am to 3:00 pm on Thursday, March 13, 2014 at the Oakland State Building, 1515 Clay Street, 13th Floor, Suite 1304. 

In addition to proposing a three-year extension to the operator certification requirements under the final cranes and derricks in construction standard, 1926 – Subpart CC, OSHA further extended the temporary enforcement policy memorandum regarding the use of proximity alarms and insulating links on cranes and derricks operating near power lines.

OSHA’s final standard for cranes and derricks in construction provides employers with several options for operating cranes near power lines.  One option includes the use of a proximity alarm or insulating link/device.  These devices “warn of proximity to power lines or that insulate against electricity.” 29 C.F.R. § 1926.1401.  Additionally, these devices are required to be listed, labeled or accepted by a Nationally Recognized Testing Laboratory (NRTL).

Currently, however, no proximity alarm or insulating link/device has been approved or meets the NRTL requirements.  Because of this, in July 2012, OSHA issued a temporary enforcement policy memorandum informing compliance officers that if a crane or derrick being inspected has  an insulating link/device, no citation shall be issued, so long as employees are properly protected by an” additional measure” listed in § 1926.1407(b)(3) or § 1926. 1408(b)(4).  For example, this additional measure could include using a dedicated spotter or range control warning device.

This temporary enforcement policy memorandum expired on November 8, 2013.  On January 24, 2014, OSHA requested that all regional offices continue to follow the July 2012 temporary enforcement policy. OSHA anticipates issuing another memorandum updating the July 2012 enforcement policy in the next few months.  Additionally, OSHA plans to propose further rulemaking to address this issue, however, it is unclear when the Agency will move forward with a proposed rule.

In the final cranes and derricks in construction standard, 1926 – Subpart CC, which was issued August 9, 2010, crane operators were required to either be certified or qualified (depending on the option elected by an employer) by November 10, 2014. 29 C.F.R. § 1926.1427(k).  On February 10, 2014, OSHA proposed a three-year extension to the operator certification deadline and requested public comment on or before March 12, 2014. 

This extension is due, in part; 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. 

This interpretation created significant concern for many industry representatives, including employers and unions, and firms that offer crane operator training.  In November 2012, International Union of Operating Engineers (“IUOE”) petitioned OSHA to reverse its interpretation and to amend the “Capacity and Type” language in 1926.1427(b)(1)(ii)(B) and 1926.1427(b)(1).

Many in the regulated community have argued that certification for the specific “capacity” of crane was never an issue during the negotiated rulemaking hearings and specifically that at the time of the negotiated rulemaking, separate certification for different capacities was not available.  Stakeholders generally assert that certification should be limited to the type of crane, not the capacity because it is the configuration of the crane that makes it complex not the capacity.

In response to these industry concerns, OSHA held three stakeholder meetings in April 2013 to gather more information.  During these meetings the possibility of an extension to the operator certification deadline was discussed and the issue was presented to the Advisory Committee on Construction Safety and Health (ACCSH) in May 2013.  During its May 2013 meeting, ACCSH recommended to OSHA that the Agency delay implementation of the operator certification deadline until OSHA reopened the record seeking clarification on third party certification and employer qualification requirement.

Acting on ACCSH’s recommendation, OSHA issued a Notice of Proposed Rulemaking on February 10, 2014 seeking comments on a proposed three-year extension for operator certification from November 10, 2014 to November 10, 2017.  During this three-year time period, OSHA will consider other rulemaking options and determine how to address the type and capacity issue.  OSHA is seeking comments on the proposed extension timeframe, as well, as the alternative approach of an indefinite extension on the certification requirements until OSHA has completed rulemaking on the type and capacity issue.
 
Comments to this proposed rule are due by March 12, 2014.  The Notice of Proposed Rulemaking can be found online here.

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

  • OSHA Issues Guidance for Inspectors on Combustible Dust. OSHA inspectors must consider a manufacturer’s or importer’s use of information gained from actual explosion events, lab testing, published data on similar materials or particle size to assure they have properly classified their products for combustible dust hazards under the revised Hazard Communication Standard (HCS), OSHA said in a recent guidance memorandum.
  • Congress Tells Regulators to Back Off Small Farms. A bipartisan group of senators, joined by Republican lawmakers in the House, have called for OSHA to halt an unprecedented effort to regulate small farms. EPA has not been spared either.
  • Employment Law Q&A. Q: Last week, we terminated a problem employee for falling asleep on the job. This week, one of our long-time employees also was caught sleeping! Do we have to fire this employee? He is one of our best workers.

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:

  • Recordkeeping Rule Must Be Withdrawn, Employer Coalition Tells OSHA.  An industry coalition, foreseeing “significant negative impacts” from OSHA’s proposed recordkeeping and reporting rule, has asked the agency “in the strongest possible terms” to withdraw it.
  • Potato Chip Maker Caught Up in OSHA’s SST Program.  A New York potato chip maker is among the latest manufacturing firms to feel the bite of OSHA’s Site-Specific Targeting (SST) Program.
  • Time to Post OSHA 300A Form.  Feb. 1 is the deadline to post OSHA Form 300A, a summary of your log of work-related injuries and illness from 2013.
  • Employment Law Q&A. Q: We operate our business in an “at will” state. Is it really necessary to document all performance problems, if we can discharge our employees for any reason or no reason?

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:

  • Federal Agencies Report Progress on Chemical Safety.  Agencies responsible for tightening chemical safety rules and procedures following a deadly explosion at a fertilizer plant last year say they are making headway.
  • OSHA Claims Trucking Firm Blacklisted Employee.  OSHA is seeking back wages and damages totaling more than $100,000 from a Missouri-based trucking firm after alleging the company unlawfully retaliated against a former employee when he sought medical attention for a work-related injury.
  • Upcoming Speaking Engagement.  In February, Mark Savit will present a seminar on “Alternative Case Resolution:  Understanding MSHA Litigation – Level the Playing Field” in Las Vegas. 
  • Employment Law Q&A.  Q: One of our employees has been on medical leave for about eight months following a stroke. He used all of his allotted FMLA leave but has not returned to work. Can we send him a letter stating that if he cannot return to work next week, his employment will be terminated?

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.

On January 15, 2014, the Occupational Safety and Health Administration (“OSHA”) launched an online resource tool to help hospitals assess workplace safety needs, implement safety and health management systems, and enhance their safe patient handling programs.  The online resource tool was created in an effort to assist hospitals in combating their high workplace injury and illness rates –  approximately 253,700 work-related injuries and illnesses were recorded in 2012. 

OSHA has identified a hospital as the most hazardous place to work in the United States, noting that the likelihood of an injury or illness resulting in days away from work is higher in a hospital than in the construction and manufacturing industries.  Data collected from the Bureau of Labor Statistics reveals that nearly half (48 percent) of injuries resulting in days away from work in hospitals are caused by overexertion or bodily motions, such as lifting, bending, or reaching.  These motions often relate to patient handling.  OSHA notes that high injury rates increase a hospital’s overall costs, much in the form of workers’ compensation payouts and loss productivity.  Continue Reading OSHA Launches Online Tool for Hospitals

Employers covered by the Occupational Safety and Health Administration’s recordkeeping rule must prepare and post OSHA Form 300A, “Summary of Work-Related Injuries and Illnesses,” by February 1, 2014, and keep the form posted until April 30, 2014.  The form must be posted at each establishment covered, in a conspicuous place where notices to employees are customarily posted.
 
After the form is completed, but before posting, a company executive must certify that “he or she has examined the OSHA 300 Log and that he or she reasonably believes, based on his or her knowledge of the process by which the information was recorded, that the annual summary is correct and complete.”
 
Under OSHA’s rule, a company executive can be one of the following:

  • An owner of the company (only if the company is a sole proprietorship or partnership);
  • An officer of the corporation;
  • The highest ranking company official working at the establishment; or
  • The immediate supervisor of the highest ranking company official working at the establishment.

OSHA can cite an employer who fails to post OSHA Form 300A as required.

California has enacted legislation that creates a new employer liability when employees miss “cooldown” periods.
 
Beginning Jan. 1, 2014, under Labor Code Section 226.7, California requires employers to provide one hour of pay to employees for missed recovery or “cooldown” periods to prevent heat illness. Employers in California should consider evaluating their business’ heat illness risks and prevention programs before the warmer months to ensure they decrease the likelihood of heat illness and are in compliance with California law.

You can access the full article here, which was co-written by Jackson Lewis Workplace Safety and Health attorney,  Benjamin J. Kim.  It appeared in today’s issue of Law360.

On December 27, 2013, OSHA quietly issued a memorandum to all Regional Administrators providing compliance guidance to Compliance Safety & Health Officers (CSHO) for inspections of manufacturers and importers under the revised Hazard Communication Standard.  Specifically, the guidance is meant to provide CSHOs with criteria for determining whether classifiers (manufacturers and importers) have appropriately classified “combustible dust.”

The revisions to the Hazard Communication Standard, 29 C.F.R. §1910. 1200, included a revised definition for “hazardous chemical.” The new definition defines a hazardous chemical as:

 … any chemical which is classified as a physical hazard or a health hazard, a simple asphyxiant, combustible dust, pyrophoric gas, or hazard not otherwise classified.

Although there is currently no OSHA standard regulating combustible dust, OSHA has included combustible dust as a hazardous chemical. This means that all manufacturers and importers (classifiers) will now need to determine and appropriately classify their products as combustible dust. 

How exactly does OSHA anticipate that classifiers will do this?  In this recent memorandum, OSHA indicates that “[t]he classifier must consider not only the hazards of the chemical in the form it is shipped, but also consider the hazards that arise under normal conditions of use and foreseeable emergencies.” The memorandum instructs CSHOs when conducting inspections to determine if the classifier has used one or more of the following approaches to determine if such hazards exist:

  •  Laboratory Testing.  Classifiers can rely on screening tests, such as ASTM E1226 and E1515 to establish whether a material is a combustible dust.  If results of accepted tests indicate the material is combustible then according to OSHA is should be classified based on those results.  Additionally, OSHA seems to suggest that if a material would be considered combustible under OSHA’s combustible dust National Emphasis Program (NEP), which is any dust that has a Kst greater than zero, then it should be classified as combustible. 
  • Published Test Results.  The classifier may rely on published data, such as NFPA 61, 68 and 499 which lists test results for various materials.
  • Dust Particle Size.  In the absence of published test data, OSHA suggests that classifiers can rely on particle size, if such information is available. “If the material will burn and contains a sufficient concentration of particles 420 microns or smaller to create a fire or deflagration hazard, it should be classified as a combustible dust.”

 In addition, OSHA asserts that any product that has been involved in a deflagration or dust explosion event should be classified as a combustible dust.

Where a classifier does not use one of these approaches or elects not to classify a material as combustible despite the use of one or more of these approaches then the classifier will have to prove to OSHA why the data was discarded and the material was otherwise classified.  In short, the classifier will have an uphill battle to prove to a CSHO why the material is not combustible.

Manufacturers and importers have until June 15, 2015 to review current products and determine whether any products must now be classified as a combustible dust and if so, must classify these products as such on Safety Data Sheets (SDS).

OSHA’s memorandum can be found here.