OSHA has announced that it will give employers in residential construction an additional three months to come into compliance with its new fall protection directive.  OSHA published the new directive on December 16, 2010 and originally gave employers until June 16, 2011 to ensure their fall protection practices were compliant.  The three month extension, according to OSHA Assistant Secretary Michaels, will give employers "the additional time and flexibility they need to alter their work practices in accordance with the requirements of the new directive."

The crux of the new directive is OSHA’s revised position regarding the use of alternative fall protection measures when conventional fall protection in residential construction is deemed to be infeasible or would create a greater hazard.  Until the new directive was issued, employers in residential construction could utilize certain specified alternative procedures instead of conventional fall protection, without a prior showing of infeasibility or greater hazard and without developing a written, site-specific fall protection plan.  The latter requirements are generally mandated by OSHA’s construction fall protection standard at 29 CFR 1926.501(b).

The new directive, however, changes this previous enforcement position, requiring residential construction employers to demonstrate that conventional fall protection on a particular job is infeasible or presents a greater hazard before utilizing alternative fall protection measures.  Furthermore, residential construction employers must develop a written, site-specific fall protection plan when utilizing these alternative methods.  According to the directive, "[a] written plan developed for repetitive use for a particular style/model home will be considered site-specific with respect to a particular site only if it fully addresses all issues related to fall protection at that site."

Notwithstanding the three month extension, residential construction employers should be actively examining their fall protection strategies and methods to ensure they are compliant with the new directive.

OSHA has launched a survey of safety and health practices of private sector employers "as a tool toward better designing future rules, compliance assistance and outreach efforts."  OSHA is surveying as many as 19,000 employers nationwide of all sizes and in all industries.  Recipients of the survey can complete it either in hard copy form or electronically.

It is expected that the "Baseline Survey of Safety and Health Practices" will be used primarily to compile information about existing employers’ use of safety and health management systems, including who manages safety and whether annual evaluations are undertaken.  This, in turn, will be helpful to the Agency in pursuing its Injury and Illness Prevention Program (IIPP) rule.  It also may be used to support other OSHA rulemakings in the future.  OSHA has stated that the survey will not be used for enforcement and will be anonymous.   

The Office of Management and Budget (OMB) has announced that it is extending its review period for OSHA’s proposed crystalline silica rule.  The proposal was received by OMB on February 14, 2011.  This extension follows the recent pattern of OMB taking longer than the standard 90 days to review OSHA rules under Executive Order 12866.  Notably, last year OMB extended its review of OSHA’s proposal to add a separate MSD column on the OSHA 300 Log.

OSHA’s proposal to comprehensively regulate crystalline silica in general industry, maritime, and construction could be one of the most significant rulemakings in OSHA’s history.  Silica, a component of the Earth’s crust, is present in a number of industries.  Both employer and employee stakeholders have been actively engaged with OSHA during the pre-rulemaking process.  Recently, several different groups of stakeholders have met with OMB officials to discuss the proposed rule.

It is unkown what has caused OMB to extend its review of the proposal.  Employers should continue to monitor this issue closely, however, and be engaged in the rulemaking process if, or when, OSHA publishes the proposal.       

OSHA is launching a nationwide outreach campaign "to raise awareness among workers and employers about the hazards of working outdoors in hot weather." In furtherance of this campaign, OSHA has developed a webpage devoted exclusively to work-related heat illness.

The website provides links to educational resources to inform employers and employees about heat illness and steps to protect workers from the heat. There are also training tools and materials for "vulnerable workers with limited reading skills or who do not speak English as a first language." OSHA also is partnering with the National Oceanic and Atmospheric Administration on weather service alerts, which will provide worker safety precautions when extreme heat alerts are issued.

It is common for OSHA to reach out to employers and employees at this time of year to alert them to the potential dangers of work in extreme heat conditions. While OSHA does not have a standard dealing directly with heat stress, OSHA could potentially utilize the General Duty Clause of the OSH Act to cite employers for failing to take steps to protect employees from heat-related illness. Employers in warm climates, in particular, should review their policies and practices to ensure that they have plans in place to deal with heat stress at their worksites.

California employers must now conduct an assessment of their workplaces for hazards that may require the use of certain personal protective equipment (PPE) and train employees in the use, care, and limitations of required PPE. The PPE included in the scope of the new rules are eye and face protection, foot protection, head protection, and hand protection. The new standard became effective on April 13, 2011.

The rules were originally proposed in 2010 as a result of an audit conducted by the federal Occupational Safety and Health Administration (OSHA) on the effectiveness of California OSHA’s (CalOSHA) safety and health enforcement and regulatory programs. In preparing responses to the federal audit, CalOSHA realized that it had not adopted equivalent rules to the federal requirements dealing with PPE hazard assessment and training. As a result, it proposed these new requirements to ensure equivalency with federal OSHA in this area – a requirement to operate a “State-plan State” under the Occupational Safety and Health Act of 1970.

Under the new rules, California employers must now assess their workplaces to determine if hazards are present, or are likely to be present, which necessitate the use of PPE, and if such hazards are present:

  • select and have employees use the needed PPE;
  • communicate the selection decisions to affected employees; and
  • select the PPE that properly fits affected employees.

Furthermore, employers must document that the hazard assessment has been performed through a written certification that identifies the workplace evaluated, the person certifying that the evaluation has been performed, and the dates of the hazard assessment.

The rules also require that the employer train each employee who is required to use PPE on the following:

  • when PPE is necessary,
  • what PPE is necessary;
  • how to properly wear and adjust the PPE;
  • the limitations of the PPE; and
  • the proper care, maintenance, useful life and disposal of the PPE.

Each employee must demonstrate an understanding of this information and will need to be retrained where changes in the workplace render previous training obsolete, changes in the types of PPE to be used render previous training obsolete, or inadequacies in an affected employee’s knowledge or use of assigned PPE indicate that the employee does not have the required competence. As with the hazard assessment, employers are required to certify in writing that their employees have been trained.

California employers must already assess their worksites through the state’s Injury and Illness Prevention Program rule, so this added requirement may be easily incorporated into existing safety and health systems. Nevertheless, all California employers are advised to review the new requirements and their own PPE programs to ensure they are fully compliant.

An OSHA compliance directive requiring contractors performing residential construction comply with the residential fall protection standard will take effect as scheduled on June 16, 2011. The Standard (29 C.F.R. § 1926.501(b)(13), Duty to Have Fall Protection) generally requires that guardrails, safety nets or personal fall arrest systems be used on residential jobsites that are more than six feet off the ground.

Adopted in 1994, the Standard requires guardrails, safety nets or personal fall arrest systems in residential construction. It contained the following exception, “When the employer can demonstrate that it is infeasible or creates a greater hazard to use these systems, the employer shall develop and implement a fall protection plan which meets [certain] requirements….”  The employer bears the “burden of establishing that it is appropriate to implement a fall protection plan which complies with [the Standard] for a particular workplace situation, in lieu of implementing any of those systems.”

In June 1999, OSHA issued Directive STD 03-00-001, instructing OSHA officials not to commence enforcement of the Standard against an employer if the employer used slide guards or other fall-protection systems that were included in the 1999 Directive.  In 2010, however, the Secretary issued Directive STD 03-11-002, rescinding the 1999 Directive and authorizing enforcement of the Standard as written.

In National Roofing Contractors Ass’n v. U.S. Dep’t of Labor, No. 11-1340 (7th Cir. Apr. 7, 2011), rejecting a challenge seeking to enjoin implementation of the 2010 Directive, the federal appeals court in Chicago ruled the 2010 Directive was an exercise of the DOL’s prosecutorial discretion, rather than an “occupational safety and health standard.”  Therefore, contrary to the plaintiffs’ argument, the 2010 Directive is not subject to judicial review pursuant to 29 U.S.C. § 655(f). Thus, the Court dismissed the plaintiffs’ petition for review and stay of enforcement of the Standard.

Employers take note.  For those that choose one or more “alternate fall protection measures,”  ensure such measures meet or exceed the OSHA’s fall protection standard and reflect that in your fall protection programs. Furthermore, be prepared to explain to compliance officers how you came to the decision to implement the alternative measures.

A special thanks to Mei Fung So, who assisted in the preparation of this post.

OSHA has just released a hazard alert to hair salon owners warning of potential formaldehyde exposure from working with some hair smoothing and straightening products. In a press release announcing the hazard alert, OSHA states:

Federal OSHA has found formaldehyde in the air when stylists used hair smoothing products, some of which do not have formaldehyde listed on their labels or in material safety data sheets as required by law. During one investigation, the agency’s air tests showed formaldehyde at levels greater than OSHA’s limits for a salon, even though the product tested was labeled as formaldehyde-free.

OSHA has a health standard that regulates formaldehyde exposure in the workplace. OSHA recommends that hair salons first use products that do not contain formaldehyde. But, OSHA states that “if a salon owner decides to continue using a formaldehyde-containing hair smoothing product, then he or she must follow OSHA’s formaldehyde standard,” including requirements for air monitoring, installing ventilation, and providing PPE, depending upon the extent of formaldehyde exposure.

This is not the first alert issued by OSHA to a specific industry. In recent months, OSHA has publicly put grain handling and retail shopping employers on notice of potential safety and health hazards in those industries. Targeting industries through hazard alert letters, letters of interpretation, Federal Register notices, or other means, may make it easier for OSHA to enforce standards against employers in the industries targeted, as they help to establish employer notice of hazards and feasible means of abatement. Employers in targeted industries need to be particularly aware of safety and health hazards and take steps to ensure they are fully compliant with OSHA rules. In the case of hair salons, OSHA gives an even clearer warning, stating that it currently has a number of ongoing investigations at salons and some citations “have been issued.”

In a much anticipated decision, the Occupational Safety and Health Review Commission (Commission) has ruled that OSHA can enforce its requirement for employers to record work-related injuries and illnesses on the OSHA 300 Log even when the employer’s duty to record the injuries and illnesses occurred more than six months before the issuance of the citation.  The employer in the case had argued that the six month statute of limitations in the Occupational Safety and Health Act for OSHA to enforce violations of the Act prohibited OSHA from enforcing recordkeeping violations that occurred beyond that six month period.  The Commission disagreed, however, and by doing so has reiterated for employers the need to continually review their recordkeeping logs to ensure the entries are accurate.

Under OSHA’s recordkeeping rule, employers are required to enter a recordable injury on the OSHA 300 Log within seven days of the occurrence of the injury.  Employers must also retain their logs for five years and under OSHA’s rule, there is an obligation for employers to go back and update entries should the circumstances surrounding them change.  In an earlier decision, Johnson Controls, Inc., the Review Commission had ruled that OSHA could cite employers for inaccurate entries until the entries were corrected or until the end of the five year retention period, whichever is longer.  The employer in the case at issue argued that Johnson Controls should be overturned for several reasons, including the Supreme Court’s decision in Ledbetter v. Goodyear Tire & Rubber Co., Inc., 550 U.S. 618 (2007), which had held that an employee’s discrimination claim under Title VII of the Civil Rights Act of 1964 was time-barred.  The Review Commission rejected the employer’s arguments, however, and held that under OSHA’s recordkeeping rule, an inaccurate entry on the OSHA 300 Log constitutes a continuing violation of the rule throughout the entire five year retention period. 

For employers, the decision reiterates the need to integrate into their recordkeeping procedures a mechanism to ensure they go back and continually evaluate the accuracy of entries — during the entire retention period.  It is not enough to record an injury within seven days and then "forget" about it.  OSHA expects employers to be diligent in updating recordkeeping entries for accuracy and may cite employers who are not.