OSHA announced today that it will be holding a series of three teleconferences, in partnership with the Small Business Administration’s Office of Advocacy, on OSHA’s proposed musculoskeletal disorder (MSD) column rule.  The teleconferences are designed to provide small businesses the opportunity to weigh-in on "their experiences in recording work-related MSDs and how they believe the proposed rule would impact them."

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 the Office of Management and Budget (OMB) for several months, before OSHA took the unique step of temporarily withdrawing the proposal from OMB review and agreeing to additional stakeholder outreach.

The three teleconferences will be held on April 11 at 1:30 p.m. EDT, April 12 at 9:00 a.m. EDT, and April 12 at 1:30 EDT.  Interested businesses should contact OSHA by April 4 if they wish to participate in the teleconferences.  

OSHA is 40 this year and the Agency is looking back on its history and "celebrating" its accomplishments.  OSHA recently issued a timeline that stretches all the way back to December 29, 1970, when the Occupational Safety and Health Act was signed, and highlights Agency accomplishments up to the present.   

Not surprisingly, the timeline is heavily populated by regulatory actions and standards issued by the Agency.  Rules varying from asbestos, to grain handling, to Nationally Recognized Testing Laboratories are highlighted.  Interestingly, the timeline highlights a non-federal OSHA rule as well – California’s adoption of an ergonomics standard in 1997.  OSHA does not mention that it finalized its own ergonomics standard toward the end of the Clinton Administration, which was later rescinded by Congress under the Congressional Review Act.  OSHA also highlights the start of several voluntary compliance programs, such as its Voluntary Protection Program, its training and education grants, and the development of its safety and health program guidelines in 1989.

As for OSHA’s recent accomplishments, the list includes a few, notably OSHA’s proposed initiative to require employers to adopt an Injury and Illness Prevention Program.  "I2P2" seems to continue to be OSHA’s signature regulatory initiative, however, stakeholders are still waiting for the Agency to begin the Small Business Regulatory Enforcement Fairness Act process for the proposal and as the timeline attests, it has been almost a year since OSHA announced this initiative.  The list does not include major enforcement initiatives issued recently, such as the Severe Violator Enforcement Program and OSHA’s Administrative Penalty Increase Memorandum.

Stakeholders should check OSHA’s timeline out — it is worth the read!  

  

OSHA has just released a Small Entity Compliance Guide for its Cranes and Derricks in Construction final rule.  The intent of the Guide is to assist employers — and particularly small employers — in understanding OSHA’s new crane safety requirements.  All employers covered by the rule should review the document to further ensure compliance.

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.