OSHA has issued a proposed interpretation of the terms "feasible administrative or engineering controls" as they are used in OSHA’s general industry and construction occupational noise standards.  Under these standards, employers must first implement feasible administrative or engineering controls before utilizing personal protective equipment (PPE) to reduce employee exposures.  According to OSHA, the proposed interpretation will "clarify that feasible as used in the standard has its ordinary meaning of capable of being done."  This proposed interpretation will have a major impact on all general industry and construction employers, who are encouraged to submit comments to the Agency on the proposed interpretation.  Comments are due by December 20, 2010.

The proposed interpretation would alter existing Agency enforcement policy for determining when an employer may 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 is proposing to eliminate this framework and consider engineering and administrative controls to be feasible so long as they will "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."

Aside from the importance of the issue to many stakeholders, by issuing the proposed interpretation in the Federal Register, OSHA is further elevating its status.  It is incumbent upon all stakeholders to comment on this proposed interpretation so that OSHA has the best information available to it when determining how to approach this important issue.   

In a surprise and rare move, the Office of Management and Budget (OMB) has extended its review of OSHA’s Occupational Injury Recording and Reporting Requirements Rule — Musculoskeletal Disorders (MSD) Column.  The rule, originally proposed this year, would require 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.” 

OMB received OSHA’s final rule to review on July 14, 2010.  Many stakeholders expected a quick review by OMB of the rule, followed by immediate publication in the Federal Register.  In order for the rule to go into effect on January 1, 2011, OSHA needs to provide the states adequate time to incorporate the new rule into their state plan programs.  Thus, many anticipated publication as early as this summer.

OMB, however, is clearly taking a hard look at OSHA’s rule.  OMB rarely extends its reviews under Executive Order 12866 and this signals that OMB has issues with the rule, or its underlying economic analysis, that it has yet to resolve with OSHA.

We will continue to keep you informed of developments wth the rule and other OSHA recordkeeping initiatives.

OSHA has proposed to make significant changes to its On-site Consultation program.  This popular program, in OSHA’s own words, "provides well-trained professional safety and health personnel, at no cost and upon request of an employer, to conduct worksite visits to identify occupational hazards and provide advice on compliance with OSHA regulations and standards."  Consultation services are provided through cooperative agreements between the states and OSHA — with federal funding.  Countless small employers, in particular, have taken advantage of the program to proactively address safety and health hazards in their worksites.

One of the benefits of the On-site Consultation program is that employers who willingly participate in the program may be eligible for deferrals from OSHA programmed inspections, such as those conducted per OSHA’s Site Specific Targeting Program.  By doing so, OSHA is rewarding companies who are in good faith addressing safety and health hazards and implementing a safety and health management system.

In this proposed rule, OSHA is proposing to limit the period of time that employers may benefit from the programmed inspection deferral — to only one year.  The proposal also provides for a further exception from the programmed inspection exemption for "other critical inspections" the Assistant Secretary of OSHA determines are necessary.  The proposal does not clearly define what are meant by "critical inspections," but notes that the exception would be applied rarely.

Employers are encouraged to submit comments on this proposed rule, particularly those employers that may have benefited from the program.  In particular, OSHA is seeking comments on the extent to which these changes would affect the willingness of employers to participate in the On-site Consultation program.  Comments are due by November 2, 2010.

              

It has been several months since OSHA unveiled its Severe Violator Enforcement Program (SVEP), which focuses OSHA’s enforcement resources on employers "who have demonstrated indifference to their OSH Act obligations by committing willful, repeated, or failure-to-abate violations."  This is the time for employers to ramp up their safety and health efforts to ensure that they do not become a "severe violator" in OSHA’s view.  Here is a powerpoint presentation that recaps OSHA’s SVEP and provides some key advice to avoid being in the program.  It also provides a breakdown of OSHA’s initiative to increase civil penalties administratively.  With a particularly active OSHA enforcement program, employers must continually focus on their safety and health programs to ensure they are fully compliant with OSHA standards.       

In what is certainly one of the most active periods in OSHA’s history, the Agency is using every tool at its disposal to ensure that employers are in compliance with OSHA’s standards and rules.  OSHA is pushing forward with new rules, enforcement initiatives, interpretive letters, media initiatives, and so forth, at an unprecedented pace.

A review of OSHA’s website demonstrates the variety of means the Agency is utilizing to handle safety and health issues.  New rules such as OSHA’s Cranes and Derricks in Construction rule are highlighted, as are the several new enforcement measures implemented by the Agency:  the Severe Violators Enforcement Program; the Administrative Penalty Bulletin; and the OSHA Training Standards Policy.  In a somewhat new approach, the website also highlights "Industry Alerts," which are alerts of safety and health issues focused on specific industries.  And these initiatives do not even include the various news releases and multi-media presentations available on the website, or the 36 letters of interpretation that have been issued so far this year.

Employers must match this activity level and be especially vigilant to ensure that they know the latest positions of the Agency on safety and health issues relevant to their worksites. 

  

Now that OSHA’s Cranes and Derricks in Construction final rule has been "officially" published in the Federal Register, employers must start the painstaking task of crawling through all of the new requirements and making sure their policies and procedures are fully compliant.  The vast majority of the rule’s new requirements take effect on November 8, 2010, so that leaves employers only three months to accomplish this.

To help employers start the process, Jackson Lewis has attached this Special Report, which details the final rule and some of its key requirements.  

After issuing a flurry of new enforcement initiatives earlier in the year, such as the Severe Violator Enforcement Program and its memorandum administratively increasing civil penalties, OSHA seems to have shifted its focus a little back toward its regulatory program.  OSHA rulemaking often proceeds at a glacial pace, but in the last few months the Agency has issued two significant rulemaking documents:  a proposed rule to revise standards for housekeeping, walking-working surfaces, and fall protection in general industry, and a final rule updating OSHA’s Cranes and Derricks in Construction standards.  The latter document will be published in the Federal Register on August 9.

That is not the end, however.  OSHA’s final rule updating recordkeeping requirements to add a separate column for recording musculoskeletal disorders (MSDs) is at the Office of Management and Budget for review.  Employers should expect to see it issued in the very near future.    

In OSHA’s proposed MSD column rule, published earlier this year, employers would have been required to “check the 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. For purposes of the proposal, the Agency defined MSDs as:

[D]isorders of the muscles, nerves, tendons, ligaments, joints, cartilage and spinal discs. MSDs DO NOT include disorders caused by slips, trips, falls, motor vehicle accidents, or other similar accidents. Examples of MSDs include: Carpal tunnel syndrome, Rotator Cuff syndrome, De Quervain’s disease, Trigger finger, Tarsal tunnel syndrome, Sciatica, Epicondylitis, Tendinitis, Raynaud’s phenomenon, Carpet layers knee, Herniated spinal disc, and Low back pain.

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 stated it was concerned that this language created confusion among employers about recording MSDs. 

OSHA’s proposal elicited significant comment from employer and employee groups.  While OSHA may make some changes to its proposal in response to these comments, given the speed with which the Agency is proceeding with the rulemaking, employers should anticipate OSHA finalizing a new MSD column on the OSHA 300 log in some form and making that change effective in the beginning of 2011.

 

OSHA has announced that its long-awaited Cranes and Derricks in Construction final rule will be issued on July 28.  OSHA will also be holding a special media briefing on the final rule that same day, featuring OSHA Assistant Secretary David Michaels.  Dr. Michaels will provide an overview of the standard and will answer questions.  We will, of course, provide additional information on the final rule’s provisions once it is released.

 

On Wednesday, July 21, the House Education and Labor Committee approved "H.R. 5663, The Robert C. Byrd Miner Safety and Health Act."  While this bill is primarily focused on overhauling mine safety laws, one section would make drastic changes to the Occupational Safety and Health Act.  If enacted, these changes will have a significant impact on employers across the country.

Some of the major changes that would occur if the legislation, as currently written, were enacted:

  • The period for abating serious, willful, or repeated violations would not be stayed by the filing of a notice of contest by an employer;
  • Civil penalties would be increased from $70,000 to $120,000 for repeat and willful violations and from $7,000 to $12,000 for serious and non-serious violations; and
  • Employers could be subject to criminal penalties for violations of OSHA standards resulting in serious bodily harm, and criminal liability generally could extend to officers and directors of companies.

The bill also creates additional procedures for whistleblower protection and would allow a Section 11(c) complaint to be filed up to 180 days after an alleged violation occurs, as opposed to the current 30-day limitation.

Employers are encouraged to keep their eye on this legislation as it is considered by Congress and we will continue to keep you apprised of developments in this area.