The Department of Health and Human Services (“HHS”) issued a proposed rule on respirator certification fees on March 27, 2013.  HHS proposed increasing the fees for respirator certifications issued by the National Institute for Occupational Safety and Health (“NIOSH”), and proposed creating a mechanism for routinely updating the fees in the future.  The proposed fee structure is designed to enable NIOSH to fully recover its costs in certifying, testing and inspecting respirators. The current fees have remained unchanged since 1972.
 

The Occupational Safety and Health Administration (“OSHA”) and the Mine Safety and Health Administration (“MSHA”) require employers to supply NIOSH-certified respirators to their employees whenever the use of respirators is required.  A NIOSH certificate of approval allows a respirator manufacturer the ability to sell its NIOSH-approved respirators to businesses or industries that require the use of respirators by their employees. 

Continue Reading Department of Health and Human Services Proposes to Increase Respirator Certification Fees

Senator Patty Murray (D-WA) recently reintroduced a bill that would amend the Occupational Safety and Health Act of 1970. The proposed Protecting America’s Workers Act (“PAWA”) (S. 665) would expand coverage to more workers, increase whistleblower protections, significantly enhance the civil and criminal penalties issued against employers for violations, and would provide rights to victims and their family members during the investigation process.

Specifically, the proposed bill would expand OSH Act protections to include state, county, municipal and U.S. government employees. It would also expand protections to flight attendants and other private sector employees. In addition, the current version of PAWA would require a minimum penalty of $50,000 for a worker’s death caused by a willful violation, and would make felony charges available for an employer’s repeated and willful violations of the OSH Act that results in a worker’s death or serious injury.

The proposed bill would also update the OSH Act’s whistleblower protection provisions by incorporating administrative procedures adopted in similar whistleblower statutes, such as the Surface Transportation Act. The most significant changes would be increasing the statute of limitations period from 30 days to 180 days for filing a complaint with the U.S. Department of Labor and providing a private right of action to all complainants. It would further mandate that the DOL investigate all death or serious injury cases and would require that employers inform workers of their rights under the OSH Act. The bill would also give workers and their families a right to meet with DOL investigators.

Moreover, the proposed bill includes new provisions addressing multiemployer worksites. For example, the proposed bill would amend the general duty clause to expand protections to all workers on the worksite (and not just the employer’s employees), and would require DOL to issue regulations requiring a site-controlling employer to track all recordable injuries and illnesses, including those occurring among contractors and subcontractors. Further, the bill would clarify the employer’s responsibility to provide necessary safety equipment and personal protective equipment to their workers.

The proposed bill was referred to the Subcommittee on Health, Education, Labor, and Pension (“HELP”) on March 22, 2013. HELP will consider it before possibly sending it on to the House or Senate as a whole for a vote.

Employers are well aware that just one work-related accident or illness can result in medical expenses, rehabilitation services, and liability compensation. A recent Nebraska Supreme Court decision is a reminder that undocumented aliens, as well as legal workers, may bring workers’ compensation claims. In Moyera v. Quality Pork Int’l, 284 Neb. 963 (Jan. 4, 2013), the Nebraska Supreme Court held that the Nebraska Workers’ Compensation Act applies to undocumented aliens and these employees could be entitled to permanent total disability benefits (“PTD benefits”) for work-related injuries. Courts in other states also have found that undocumented employees are covered by their state workers’ compensation systems, including: (1) Florida, (2) Kansas, (3) Kentucky, (4) Maryland, (5) New Jersey, (6) North Carolina, (7) Ohio, (8) Oklahoma, and (9) Pennsylvania. Such liability can be avoided by carefully managing the hiring process to ensure that you do not employ aliens who are not authorized to work.  Additional details can be found here.

Employers may seek additional information regarding an employee’s religious beliefs where the employee seeks to be excused from participating in a mandatory influenza vaccination program for religious reasons, according to the Equal Employment Opportunity Commission’s Office of Legal Counsel. The opinion came in an informal discussion letter in which the Office responded to an inquiry regarding religious accommodations under Title VII of the Civil Rights Act of 1964 in the context of mandatory vaccination programs. The letter highlights the limitations of such an inquiry and is subject to the EEOC’s caution that the letter provides only “an informal discussion of the noted issue and [did] not constitute an official opinion of the Commission.”  Additional information can be found here.

I am very pleased to announce that the OSHA Law Blog has been nominated as a “Best Construction Blog” by the publisher of North Carolina Construction News.  We need your help!  If you’re a fan of the OSHA Law Blog, please vote for us by clicking here.  You will need to scroll about ¾ of the way down the page until you see all the blog hyperlinks, under the section titled “Best construction blog: Your vote counts.”  The blogs are listed alphabetically.  Simply check the box next to the OSHA Law Blog, then fill out the form at the bottom of the page, and click “submit.” 

Thank you in advance for your vote!  We work hard to bring you timely OSHA-related news and information, and are honored to be acknowledged for our efforts.
 

Employee claims of retaliation have risen steadily on a year-to-year basis and recent government statistics suggest this is a continuing trend. The Occupational Safety and Health Administration (“OSHA”), which enforces 22 separate federal whistleblower statutes, has issued updated statistics showing the number of whistleblower cases filed with the agency and their outcome. According to the report, OSHA completed a total of 2,769 cases in 2012, a significant increase from the 1,948 completions in 2011. This continues an upward trend going back several years. The number of complaint “determinations” in 2012 was 2,867, a 42 percent increase from the 2,013 “determinations” in 2011.  More information is here.

The General Accounting Office (GAO) has just completed a critical review of OSHA’s Nationally Recognized Testing Laboratory (NRTL) Program.  The NRTL Program is an OSHA program that accredits laboratories to perform testing of certain equipment to ensure its safety when used in the workplace.  Most notably, all electrical equipment used in worksites across the country must be approved for use by an NRTL.  Which laboratories receive accreditation to perform these services – and the types of products the laboratories can approve – are determined by this program.

For several years, NRTLs and laboratories wishing to be accredited as NRTLs, have complained about significant delays in the recognition process.  In addition, whenever an existing NRTL wishes to expand its testing services to include additional products, it must also seek approval from OSHA to do so, which can lead to further delays.  Among other things, GAO was asked to examine the extent of these delays and the consequences of them on NRTLs.

Citing an imbalance between staffing levels and scope of responsibilities and unclear application requirements, GAO concluded that the lengthy process “has potentially negative economic consequences for laboratories and requires OSHA staff to divert their time from other oversight activities.”  The GAO further identified three key strategies for improving timeliness:  (1) aligning program design with program mission and resources, (2) providing clear guidance and timely communication to stakeholders, and (3) developing performance measures and using data to identify inefficiencies.

In response to the GAO report, OSHA committed to further assessing Program effectiveness against alternative approaches and in coordination with other outside agencies.  We will continue to keep you posted on any developments with the NRTL Program.
 

OSHA recently issued its long-awaited regulatory agenda.  The agenda is designed to provide stakeholders with notice of what major regulatory initiatives the agency is planning and the projected timetables for those initiatives.

OSHA’s agenda is the first issued in several months by the agency and provides a glimpse into the regulatory priorities – in President Obama’s second term.  The signature initiative of OSHA over the last four years has been its Injury and Illness Prevention Program (IIPP) rule.  That rule has been under development for several years, but has yet to be released in any form or fashion to the public.  The recently published regulatory agenda states that OSHA will initiate the SBREFA process in January of 2013 for the rule, with a Notice of Proposed Rulemaking to follow in December, 2013.  Another major rulemaking – OSHA’s effort to propose a comprehensive standard regulating silica – is slated to be published in May, 2013.

Three other significant regulatory actions under development are listed as follows:

  • Combustible Dust – Initiate SBREFA in October, 2013.
  • Electric Power Transmission and Distribution – Issue final rule in March, 2013.
  • Update Recordkeeping Rule regarding Reporting of Amputations/In-patient Hospitalizations – Issue final rule in May, 2013.

All stakeholders should continue to monitor progress on these and other OSHA initiatives as we continue to see a very active OSHA in the coming months and years.