OSHA’s new Enforcement Guidance for Personal Protective Equipment in General Industry (CPL 02-01-050) has been “on the street” for a few weeks and employers are still working through its details. While employers need to go through the directive carefully on their own and incorporate the aspects of the directive that are applicable to their facilities, after a closer review of the document, it is worth emphasizing a few pieces of information that may go unnoticed:

  • OSHA states in the directive that body protection is required for employees who face potential bodily injury in the workplace of “any kind” that cannot be eliminated through other control measures. Examples given are radiation, temperature extremes, hot splashes from molten metals, and other hot liquids. According to OSHA, an employer can provide laboratory coats, coveralls, vests, jackets, aprons, surgical gowns, or full body suits to protect against these and other similar hazards, depending on their exact nature.
  • Metatarsal guards are required when there is a potential for injury to the metatarsal portion of the foot from impact or compression hazards. “Examples include handling heavy pipes or similar activities where loads could drop on or roll over an employee’s foot.”
  • Employees who work in actual or potentially explosive and hazards locations “must wear” conductive shoes to reduce the risk of static electricity buildup on the body. However, employees exposed to electrical hazards must never wear conductive shoes.
  • For employers who have instituted a reimbursement policy for PPE (i.e., an employee initially purchases the PPE and is then reimbursed by the employer), the employer should reimburse the employee within one billing cycle or one pay period.

With enforcement guidance out, employers should expect CSHOs to focus more on PPE and PPE payment in the course of inspections. Employers should review their PPE policies, hazard assessments, training, and payment practices to ensure they are fully compliant.

OSHA is a step closer to publishing a proposed rule regulating crystalline silica exposure in general industry, construction, and maritime.  OSHA’s proposal has been submitted to the Office of Management and Budget (OMB) for review under Executive Order 12866.  This is the final internal review before the proposal gets published in the Federal Register and signals that OSHA’s proposal will be out in early to mid-Summer.

Crystalline silica is ubiquitous, comprising a substantial percentage of the Earth’s crust.  OSHA has evidence that exposure to crystalline silica at the current permissible exposure limit (PEL) causes silicosis and other diseases.  It has been seeking to comprehensively regulate the substance – and reduce the PEL – for over a decade.  In 2003, OSHA completed a Small Business Regulatory Enforcement Fairness Act (SBREFA) panel for an early draft version of the rule and has since been preparing regulatory text and background health, risk, and economic data to support the rulemaking.

OSHA’s rulemaking efforts in this area are complicated by the broad scope of the rule — a number of employers in a variety of industries use silica in their operations — as well as technical issues associated with controlling silica exposures.  There are also difficult issues of sampling methodology that the Agency must overcome.  And of course, stakeholders are keenly interested in what ancillary provisions OSHA might propose, such as medical surveillance requirements, housekeeping requirements, and requirements related to regulated areas.

All employers should stay tuned and follow this rulemaking closely, even at this early OMB review stage.  OMB has recently extended its review of a couple of OSHA rulemakings, which have had the effect of delaying publication.  It will be interesting to see how this particular review period proceeds. 

 

OSHA has established new procedures for enforcing its personal protective equipment (PPE) standards in general industry.  The compliance directive "provides general guidance for the enforcement of standards applicable to personal protective equipment (PPE) in general industry, including guidance on payment for PPE."  The new procedures became effective on February 10, 2011.

The directive provides useful information to employers to help them understand how OSHA’s employer payment for PPE final rule should be implemented.  That rule requires that employers pay for most PPE, but carves out certain exceptions where employer payment is not required.  Since the rule came into effect, many employers have struggled to understand exactly how these exceptions can be applied to their worksites.  OSHA’s directive may help employers in this area.

The directive gives examples of PPE that employers must provide to their employees, provides examples of exempted PPE, and lists a series of FAQs to assist employers with compliance.  It also provides citation scenarios "of potential workplace conditions that would lead to a citation."

All employers that are required to provide PPE to employees should review the directive carefully to ensure compliance. 

The Department of Labor has just announced that OSHA is temporarily withdrawing from review by the Office of Management and Budget (OMB) its proposed rule to restore a column for musculoskeletal disorders (MSDs) on employer injury and illness logs.

The rule, originally proposed last year, would have required employers to “check a box” in a separate column on the OSHA 300 log – an “MSD” column – for injuries and illnesses that fit within the Agency’s proposed definition.  OSHA also proposed to remove existing language from its recordkeeping compliance directive that “minor musculoskeletal discomfort” is not recordable as a restricted work case “if a health care professional determines that the employee is fully able to perform all of his or her routine job functions, and the employer assigns a work restriction for the purpose of preventing a more serious injury.”    

OSHA’s proposal had been stuck at OMB for several months, causing many stakeholders to question when or if a final rule would be issued.  In a press release announcing the withdrawal, OSHA cites the need to seek greater input from small businesses on the impact of the proposal.  OSHA "will do so through outreach in partnership with the U.S. Small Business Administration’s Office of Advocacy."

A new state law makes it easier for the California Division of Occupational Safety and Health (Cal/OSHA) to classify workplace safety violations as “serious” for purposes of issuing citations and proposed penalties to employers. Assembly Bill 2774, signed by Governor Schwarzenegger in September 2010, broadens the definition of “serious violation” and establishes specific procedures for Cal/OSHA to create a rebuttable presumption that a “serious violation” exists at a worksite. According to Cal/OSHA, the law will “help strengthen the Cal/OSHA program, improve enforcement efforts and better protect California’s workers.”

Under the new law, Cal/OSHA can create a rebuttable presumption that a “serious violation” exists if it demonstrates that “there is a realistic possibility that death or serious physical harm could result from the actual hazard created by the violation.” This “realistic possibility” standard is looser than the California Labor Code’s previous requirement of a "substantial probability” of death or serious physical harm.

AB 2774 also expands the definition of “serious physical harm” to mean:

[A]ny injury or illness, specific or cumulative, occurring in the place of employment or in connection with any employment, that results in any of the following:

  1. Inpatient hospitalization for purposes other than medical observation.
  2. The loss of any member of the body.
  3. Any serious degree of permanent disfigurement.
  4. Impairment sufficient to cause a part of the body or the function of an organ to become permanently and significantly reduced in efficiency on or off the job….

The new law establishes specific procedures for Cal/OSHA to follow.  Before issuing a citation alleging that a particular violation is serious, Cal/OSHA inspectors are directed to consider the following information:

  • The training employees and supervisors have had related to preventing employee exposure to the hazard or similar hazards;
  • Employer procedures for uncovering and controlling the hazard or similar hazards;
  • Supervision of exposed or potentially exposed employees;
  • Employer procedures for communicating with employees regarding its health and safety rules; and
  • Any information the employer provides regarding the circumstances surrounding the alleged violative conditions, why the employer believes a serious violation does not exist, and why the employer’s actions were reasonable.

Under the law, Cal/OSHA may accomplish the above by presenting a form to the employer – at least 15 days before issuing a serious violation citation – essentially describing the alleged serious violation and requesting a response from the employer. 

If Cal/OSHA establishes a presumably serious violation, the employer may rebut the presumption by presenting evidence that it “did not know and could not, with the exercise of reasonable diligence, have known of the presence of the violation.” This burden can be met by proving (1) that the employer took all steps a reasonable employer would take under the same circumstances, and (2) the employer took effective action to eliminate employee exposure to the hazard created by the violation as soon as it was discovered.

California employers should be aware of this new law and the specific procedures established for Cal/OSHA inspectors to meet their burden of proving a serious violation. In addition, California employers should take note of the types of information and evidence available to rebut the presumption of a serious violation. This involves having strong training programs for employees and supervisors, systems to “find and fix” hazards, and understanding industry best practices for addressing hazards. 

Citing "concerns raised" and the need for "more public outreach," OSHA is withdrawing its  proposed interpretation on occupational noise.  The proposal would have altered existing Agency enforcement policy for determining when an employer could utilize PPE to protect employees from noise exposures, as opposed to relying on engineering and administrative controls.  Existing policy provides that employers will be cited for not implementing certain engineering or administrative controls when hearing protectors are ineffective or the cost of such controls are actually less than the cost of implementing a full hearing conservation program.  OSHA was proposing to eliminate this framework and consider engineering and administrative controls to be feasible so long as they would "not threaten the employer’s ability to remain in business or if the threat to viability results from the employer’s having failed to keep up with industry safety and health standards."

Many stakeholders expressed concerns over the proposal and the potential costs.  OSHA originally set a 60-day comment period for the proposal, but then extended that in response to numerous requests for more time to submit comments.  Now, OSHA appears to be backing away from the proposal altogether.

Instead, the Agency says that it will find other ways to reduce the number of hearing loss cases by:

  • Conducting a thorough review of comments received from the public in response to the proposed interpretation.
  • Holding a stakeholder meeting to discuss ways to prevent occupational hearing loss.
  • Consulting on approaches with NIOSH and the National Academy of Engineering.
  • Initiating a "robust" outreach and compliance assistance effort to provide guidance on "inexpensive, effective engineering controls" to reduce noise exposures.  

Even though OSHA has withdrawn the proposal, all stakeholders are encouraged to engage the Agency on noise exposures and control measures.  OSHA is still asking for input on this issue and employers should take the Agency up on its offer.  As opportunities arise for additional input, we will keep stakeholders apprised.

It’s that time of year again!  Employers covered by OSHA’s recordkeeping rule must prepare and post the OSHA Form 300A "Summary of Work-Related Injuries and Illnesses" by February 1 and keep the form posted until April 30.  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 also certify that "he or she has examined the OSHA 300 Log and that he or she reasonably believes, based on his or her knoweldge 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.

This obligation is important and employers can be cited for failure to post.  Employers should take steps now to make sure they are fully compliant. 

    

On December 20, 2010, OSHA released its fall regulatory agenda, which sets forth the Agency’s current rulemaking priorities.  Over the last several months OSHA has been emphasizing the need to push forward on several regulatory inititatives.  OSHA rulemaking, however, can be painstakingly slow, and OSHA’s fall regulatory agenda reflects that.

Of particular note, the issuance of a proposed rule for crystalline silica has been pushed back by the Agency until April of 2011.  OSHA has been working on this regulatory initiative since the mid-1990’s.  Prerule actions to initiate the Small Business Regulatory Enforcement Fairness Act (SBREFA) process for OSHA’s Injury and Illness Prevention Program rule and Combustible Dust rule are now set for June and April of 2011, respectively.  These rules have been signature initiatives of OSHA over the last several months.  Health rules on beryllium and diacetyl appear to be stuck in the Agency’s peer review process.  At the same time, OSHA did not announce any major new regulatory initiatives in the fall agenda.  Two small construction rulemakings were added concerning reinforcing and post-tensioned steel construction and the prevention of equipment backing accidents.

OSHA’s regulatory agenda also may be hitting obstacles at the Office of Management and Budget (OMB), which must review all significant OSHA rulemakings.  OMB has extended its review of two OSHA final rules:  General Working Conditions for Shipyard Employment and Occupational Injury and Illness Reporting Requirements-Musculoskeletal Disorders (MSD) Column.  The extended review of the latter rule has effectively prevented it from being implemented in 2011.

All stakeholders should continue to watch OSHA’s regulatory agenda over the coming months as the Agency must make significant progress on rulemakings it wishes to finalize by the end of 2012.  We will, of course, continue to keep you apprised of developments.     

With the recent increase in OSHA enforcement activity, many employers are being forced to answer the question:  "If an OSHA compliance officer visits my workplace, is my company prepared?"  Hopefully, for most employers the answer is a resounding "yes."  However, for employers who are not so sure about their ability to handle an OSHA inspection, the start of the new year provides an excellent opportunity to refocus on safety and health.  This powerpoint can help employers in this process, by summarizing key steps to take to prepare for and handle an OSHA inspection.     

In a recently issued 2009 Enforcement Summary, OSHA claims that violations issued against employers in fiscal year 2009 were up 2.8% since fiscal year 2005.  Furthermore, the total number of serious and repeat violations were up 10.9% and 17.5%, respectively, over the same five year period.  According to the Agency, "OSHA is committed to refocusing OSHA’s priorities through developing and enforcing standards to protect workers and moving toward tougher citations and penalties to provide a powerful incentive to respect their workers, integrate protection into business operations, and make prevention a priority."

While OSHA enforcement is generally up when compared to fiscal year 2005, a closer review of the enforcement statistics shows a more complicated picture.  When the 2009 numbers are compared to fiscal year 2007, for example, total violations were higher in fiscal year 2007 than in fiscal year 2009.  Furthermore, willful violations are down significantly (46.3%) since 2005.  Criminal referrals are also down from fiscal year 2006.

So what does all this mean for employers?  While there is some deviation in the overall numbers, there is little doubt that enforcement remains a top priority of OSHA — along with an increase in regulatory activity.  It is incumbent upon employers to thus proactively adress workplace hazards and adopt safety and health management systems to assist in the process.