The Occupational Safety and Health Administration’s proposal to comprehensively regulate silica (quartz) in general industry, maritime, and construction is anticipated by Labor Day. Publication of the proposal to extensively regulate one of the most common minerals on Earth, like arsenic and lead, will trigger a public comment period and hearings.
 
The proposed rule, which could be one of the most significant rulemakings in OSHA’s history, is expected to cut in half the permissible exposure limit (PEL) for respirable silica dust and require a wide range of ancillary protective measures, including engineering controls, air and medical monitoring, restricted work areas, housekeeping mandates, respirator use, warnings, training and recordkeeping.  The full article can be read here.

I am pleased to announce the addition of several new leading safety and health lawyers to the Jackson Lewis team.  Joining us from Patton Boggs are Henry Chajet, Mark Savit, Brian Hendrix, Avi Meyerstein, Donna Pryor, and Bob Horn.  And joining us from Ogletree Deakins is Tressi Cordaro.  Collectively, these outstanding lawyers have several decades of experience in safety and health law.

These new team members build upon other recent additions to our Group, including Pedro Forment, Mike Taylor, Michelle Duncan, and Nickole Winnett.  Our goal continues to be to provide the best legal representation in the safety and health arena and these recent additions will help our clients in this important area of the law.

If you have any safety and health issue, please do not hesitate to contact me or the Jackson Lewis attorney with whom you regularly work.       
 

OSHA recently issued its FY 2014 Budget Justification.  The document spans over 130 pages and provides a wealth of information regarding the Agency’s priorities.

In FY 2014, OSHA proposes to continue its aggressive enforcement posture.  The Budget Justification cites a recent study published in Science magazine entitled Randomized Government Safety Inspections Reduce Worker Injuries with No Detectable Job Loss, which claimed that enforcement inspections result in safer workplaces and provide employers significant savings through reduced workers’ compensation costs.  OSHA states in the Justification that “the average employer saved $355,000 (in 2011 dollars) as a result of an OSHA inspection.”  The Justification also states that OSHA is currently working with the Department of Labor’s policy office to “test the impact of inspections on injury and illness rates and overall compliance with OSHA standards and regulations for establishments on OSHA’s targeted inspection lists.”

OSHA also seeks an increase in funding for its standard setting activities, including an increase in $2 million dollars for “contract support for the agency’s rulemaking efforts to protect workers from complex and dangerous hazards.”  With the funding requested:

OSHA projects that it will issue four Final Rules (Infectious Disease, Recordkeeping Modernization, Beryllium, and Vertical Tandem Lifts), seven Notices of Proposed Rulemaking (Standards Improvement Project Phase IV, Infectious Disease, Injury and Illness Prevention Programs, Combustible Dust, Backover Protection, and two consensus standard update actions), and initiate SBREFA reviews for five rules (Combustible Dust, Backover Protection, one chemical standard, and two other initiatives).

OSHA is requesting a significant decrease in funding for its Federal Compliance Assistance programs.  State OSHA-program support and State compliance assistance would remain the same under OSHA’s 2014 Budget request.

The Budget Justification is a good indicator of the priorities of the Agency.  The Agency will continue to emphasize enforcement and regulatory activities and employers should continue to monitor the Agency’s efforts in these areas.
 

In the latest round in the debate over employment-based wellness programs, the U.S. Departments of Health and Human Services (HSS), Labor and the Treasury have issued final regulations on the treatment of such programs under the Affordable Care Act (ACA). While the new regulations raise the maximum permissible reward that may be offered in connection with certain wellness programs, they make clear that outcome-based financial incentives must be widely available to program participants. All employers who have incorporated outcome-based wellness program as part of their group health plan should review the new regulations carefully to ensure their programs are in compliance before the regulations take effect. To read the full article, click here.

OSHA recently launched an initiative that focuses on protecting temporary employees from recognized workplace hazards.  Under this initiative, OSHA is directing all OSHA compliance officers to assess whether employers who use temporary workers are complying with their responsibilities under the Occupational Safety and Health Act of 1970.  For purposes of this initiative, temporary workers are defined as all employees supplied to a host employer and paid by a staffing agency. 

As part of their inspections, OSHA compliance officers will determine whether any employees are temporary workers and whether any of the identified temporary employees are exposed to a violative condition.  They also will assess, by records review and interviews, whether temporary workers received appropriate training in a language and vocabulary they can understand.  OSHA compliance officers will pay particular attention to whether temporary workers are trained in how to protect themselves from serious hazards, such as wearing appropriate protective equipment when working with hazardous chemicals and the lockout/tagout procedures and protections. 

OSHA compliance officers also will be required to document the name of the temporary workers’ staffing agency, the agency’s location, the supervisory structure of both the host employer and staffing agency, and the extent to which the temporary workers are being supervised on a day-to-day basis by either the host employer or the staffing agency.

 

As a cold winter finally comes to an end, many of us look forward to summertime warmth. But while sun and heat may make for a fun day at the beach, they  can spell  danger for workers who are exposed to soaring temperatures and a rising heat index. According to the Occupational Safety and Health Administration (“OSHA”), thousands of workers in the United States get sick from excessive heat exposure while working outdoors each year and more than 30 workers died in 2012 from heat-related illnesses.

Although OSHA  has no heat illness prevention standard, Section 5(a)(1) of the Occupational Safety and Health Act of 1970 (“OSH Act”), known as the General Duty Clause, requires employers to provide their employees with a workplace free from recognized hazards likely to cause death or serious physical harm.  That includes protecting them from heat stroke and other serious heat-related illness.   Of the “State-plan” states running their own  safety programs under agreements with OSHA,   only California and Washington currently have  heat-related illness prevention standards.  However, other State-plan states also have general duty clauses in their statutes which may be invoked to address these issues.

Continue Reading The Heat is On: What Employers Can Do to Protect Employees from Heat-Related Illness

Representative George Miller (D-CA) recently reintroduced a bill (H.R. 1649) that would provide whistleblower protections to certain workers in the offshore oil and gas industry.  The bill was first introduced in 2010 and again in 2011. 

Continue Reading Offshore Oil and Gas Worker Whistleblower Protection Act of 2013 Introduced Into the House

The Occupational Safety and Health Administration (“OSHA”) released a new interpretation letter on April 5, 2013, clarifying that non-union employees may select a non-employee who is “affiliated with a union” or with a “community organization” to act as their walk-around representative during OSHA inspections of their employer’s worksite.  In reaching this conclusion, OSHA concluded that language in Section 8(e), 29 U.S.C. § 657(e), of the Occupational Safety and Health Act (“OSH Act”) authorizes participation in the walk-around portion of an OSHA inspection by a person affiliated with a union without a collective bargaining agreement or with a community representative so long as the individual has been authorized by the employees to serve as their representative.  

However, OSHA recognized that pursuant to 29 C.F.R. § 1903.8, the OSHA compliance officer may exercise his or her discretion in who can participate in workplace inspections in order to manage the inspection effectively.  While OSHA recognized that its regulations acknowledge that most employee representatives will be employees of the employer, it concluded that there may be times when the presence of an employee representative who is not employed by the employer will be allowed to participate in a workplace inspection.  Specifically, the regulations allow an OSHA compliance officer, for “good cause,” to be accompanied by a third-party who is not an employee, such as “an industrial hygienist or a safety engineer” when, in the judgment of the OSHA compliance officer, such a representative is “reasonably necessary to the conduct of an effective and thorough physical inspection.”  29 C.F.R. § 1903.8(c).  In OSHA’s view, representatives are “reasonably necessary” when they will make a positive contribution to a thorough and effective inspection.  OSHA noted that a non-employee representative may make a positive contribution to an inspection if, for example, he or she has experience and skill in evaluating similar working condition, or when he or she is fluent in the language of non-English speaking workers and would facilitate useful interactions between the compliance officer and the workers.

Citing confusion, OSHA withdrew an earlier 2003 interpretation letter that rejected the right of a non-employee who files an OSHA complaint to participate in the resulting OSHA inspection.  OSHA noted that the 2003 interpretation letter was distinguishable because it did not address the right of workers to designate a representative of their choice.

OSHA’s Region III is targeting noise exposure in the workplace, as part of a Regional Emphasis Program.  Federal OSHA states located in Region III include Delaware, the District of Columbia, and Pennsylvania.  According to OSHA, noise “induced hearing loss is one of the most common occupational diseases and the second most self-reported occupational illness or injury.”

Under the Emphasis Program, OSHA will be conducting inspections in the following industries, selected for inclusion based upon agency data showing frequent citations in these industries for OSHA’s occupational noise standard:

3089/Plastics Products, Not Elsewhere Classified
3281/Cut Stone and Stone Products
2448/Wood Pallets and Skids
2421/Sawmills and Planing Mills, General
3441/Fabricated Structural Metal
5093/Scrap and Waste Materials
3499/Fabricated Metal Products, Not Elsewhere Classified
2499/Wood Products, Not Elsewhere Classified
3599/Industrial and Commercial Machinery and Equipment, Not Elsewhere Classified
3599/Industrial and Commercial Machinery and Equipment, Not Elsewhere Classified
3544/Special Dies and Tools, Die Sets, Jigs and Fixtures and Industrial Molds
2051/Bread and Other Bakery Products, Except Cooking and Crackers
2525/Mattresses, Foundations, and Convertible Beds
3462/Iron and Steel Forgings
5051/Metals Service Centers and Offices
3271/Concrete Block and Brick
3442/Metal Doors, Sash, Frames, Molding and Trim Manufacturing
3443/Fabricated Plate Work (Boiler Shops)
3312/Steel Works, Blast Furnaces (Including Coke Ovens) and Rolling Mills
2099/Food Preparations, Not Elsewhere Classified

The inspections will comprehensively analyze noise exposures in the workplace and the measures employers are taking to address the hazard.  Compliance officers are directed to sample for noise and evaluate engineering and administrative controls used at the worksite.  Employers’ hearing conservation programs will also be reviewed.

Employers in Region III should take time now to review their facilities for compliance with OSHA’s noise standard, along with their hearing conservation programs, and be prepared for these Emphasis Program inspections.