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.

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

  • OSHA Citation Vacated for Lack of Scientific Support.  Relying on witnesses who ignore scientific evidence is not recommended by the U.S. Court of Appeals for the Seventh Circuit.
  • Criminal Charges Dropped against Mining Company, Foreman.  Ruling the government could not prove its case, a federal district court judge has thrown out criminal charges against a Virginia coal operator and its foreman.

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.

Wishing all  of our OSHA Law Blog subscribers a happy and healthy New Year!

On November 26, 2013 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.

In the current Unified Agenda the Department of Labor has listed a total of twenty eight regulatory entries for OSHA specific actions. This regulatory agenda differs from the published spring 2013 agenda.  Specifically, OSHA added three new agency actions to its agenda, including two for the construction industry and one for the shipyard industry.

For the shipyard industry, OSHA is considering possible changes to standards governing scaffolds, ladders and other working surfaces in shipyards. OSHA is considering splitting the current subpart into three subparts, Subpart E Stairways, Ladders and Other Access and Egress; Subpart M Fall Protection; and Subpart N Scaffolds. According to the agenda, OSHA will issue a request for information from the public about the possible rule changes in August 2014.

For the construction industry, OSHA has added two new proposed rules relating to the Cranes and Derricks in Construction Standard.  OSHA anticipates issuing a Notice of Proposed Rulemaking for Amendments to the Cranes and Derricks in Construction Standard in January 2014.  This Notice will address technical amendments and corrections to 1926.1400 (Subpart CC) – Cranes and Derricks in Construction.  Two of the proposed corrections included clarifying the exclusion of powered industrial trucks and defining the term “digger derrick.”

The second Notice of Proposed Rulemaking for the Cranes and Derricks in Construction Standard pertains to Operator Certification.  There has been considerable conflict between OSHA and interested stakeholders regarding OSHA’s interpretation that a crane operator must be certified on the specific type of crane and the specific capacity.  Many in the industry believe that capacity should not be a factor in operator certification.  In order to address this issue OSHA is delaying the operation certification/qualification requirements in the standard, which are effective November 10. 2014.  Under the Notice of Proposed Rulemaking OSHA would delay that effective date until November 2017.  OSHA anticipates issuing this Notice of Proposed Rulemaking in December 2013.

Additional regulatory actions under consideration by OSHA include:

 OSHA-Blog-Chart-12032013

The full federal Unified Agenda and Regulatory Plan can be found online at: http://www.reginfo.gov/public/do/eAgendaMain.

The New York Court of Appeals’ 4-3 decision allowing subjects of drug tests to sue laboratories for “negligent testing” may hold a lesson for employers who desire to test their employees, particularly when conducting on-site testing using specimens other than urine. It illustrates risks that attend employment-related drug testing, although the issue in the case was whether a laboratory that contracted with a county probation department to analyze drug tests performed on probationers may be liable to a test subject for a negligent drug test. Landon v. Kroll Laboratory Specialists Inc., 2013 NY Slip Op 6597 (Oct. 10, 2013).  Read the full article here.

The Occupational Safety and Health Administration’s (“OSHA”) Notice of Proposed Rulemaking to “Improve Tracking of Workplace Injuries and Illnesses” was published in the Federal Register on November 8, 2013.  The proposed rule amends the recordkeeping regulations to add three new requirements for the electronic submission of injury and illness information to OSHA.  In addition, OSHA will publicly post the electronically-submitted injury and illness information on its website and may create a searchable online database.  Employers and the public will have until February 6, 2014, to submit written comments on the proposed rule.   

The proposed rule does not expand coverage of the recordkeeping requirements or change the information that an employer is currently required to collect and maintain under 29 C.F.R. Part 1904.  Only those employers, who are already required to keep injury and illness records, will be subject to the new electronic-submission requirements discussed below.  Thus, employers with 10 or fewer employees or establishments in certain low-hazard industries, such as finance, insurance, retail, or real estate, are not subject to the new electronic requirements unless OSHA informs them in writing to keep such records and electronically submit them.    Continue Reading OSHA’s Proposed Electronic Recordkeeping Rule

By adopting the “Florida Ban on Texting While Driving Law,” Florida has joined 41 other states where texting while driving is illegal. The new law prohibits, as a secondary offense, manual texting, e-mailing and instant messaging on a wireless device while driving. Drivers cannot be pulled over for texting alone; rather, the driver must have engaged in a separate traffic offense. The new law adds Section 316.305 to the Florida Statutes and amends other sections.  Read the full article here.

Employers whose employees may be exposed to hazardous chemicals in the workplace must train their employees on the Occupational Safety and Health Administration’s new labeling elements and new Safety Data Sheet format by December 1, 2013.  Additional details can be found here.

Property owners wishing to prohibit concealed firearms from being carried on their property must post officially approved signage conspicuously at the entrance of their building, premises or real property, according to a regulation published by the Illinois State Police. Owners of parcels where concealed carry is prohibited by the Illinois Firearms Concealed Carry Act also must post the required sign in the same manner.  Read the full article here.

Their regular duties put on hold by the government shutdown, the Mine Safety and Health Administration (MSHA) and the Occupational Safety and Health Administration (OSHA) are operating under contingency plans to guard against imminent safety and health threats, while legal challenges to these agencies’ enforcement proceedings have largely been suspended.
MSHA’s plan to weather the shutdown is to keep 41 percent of its workforce of 2,355 on the job. This is in sharp contrast to OSHA, which said it requires just 230, or 10 percent, of its 2,235 employees to address essential functions.

The mine safety agency’s employees will be used to continue impact inspections, which target mines MSHA believes have a history of putting miners at risk. Hazard-specific inspections aimed at conditions and practices that have led to recent mine fatalities and serious injuries will continue. Also undisturbed will be investigations into accident and miners’ safety complaints, as well as selective sample analyses. To support these activities, a minimal level of supervisory staff will be maintained at all of MSHA’s district and field offices.

MSHA also said it would continue to perform certain plan reviews and approvals, provide information technology support, maintain a minimal emergency response presence and provide security at the Mine Academy and at its facility in Triadelphia, WV.

OSHA said it will continue to enforce both imminent danger situations and activities involved in responding to workplace fatalities and catastrophes. In addition, OSHA will maintain staff to respond to emergencies and to safety and health complaints or other information deemed to present a high risk of death or serious harm. A key function of its compliance staff during the shutdown will be to assist in tracking and processing open cases/citations to ensure statute of limitations dates do not lapse.

OSHA’s 10 regional offices will remain open with minimal staff. Senior compliance officers specializing in safety and in health (one each) will staff each of its 92 field offices, and its Salt Lake City Technical Center will retain two senior chemists and two industrial hygienists from its health response unit.

Meanwhile, with staffing at the Office of the Solicitor of Labor cut by 90 percent and the Office of Administrative Law Judges cut to zero, Department of Labor attorneys are handling only core legal services required of DOL agencies and cases involving human life or property protection. Four DOL attorneys remain assigned to MSHA. Attorneys will be added in cases where federal court litigation or statutes of limitations cannot be adjusted. However, the strategy for most cases will be to seek extensions, a move that will further clog the system and aggravate the case backlog.