OSHA’s Cranes and Derricks in Construction final rule has just cleared the Office of Management and Budget (OMB), setting the stage for this important rule to be published within the next few weeks.

As previously discussed in this space, this final rule has been several years in the making.  The proposal contained over 40 separate sections of detailed requirements in such areas as crane assembly, crane operation, inspections, and operator training and certification.  The most controversial provision in the proposed rule related to “Operator Qualification and Certification.” OSHA proposed that all crane operators be certified to operate a crane, principally by having the operators trained and tested by an “accredited” crane operator testing organization.  This provision alone was estimated by OSHA to cost employers $37.3 million.

Construction employers who use cranes in their operations must be prepared to implement the requirements in the final rule.  Once published, we will provide additional information on the final rule’s provisions.

In a recently issued letter of interpretation, OSHA has confirmed its policy that employees working in an aerial lift over water may unhook their lanyard from the boom or basket of the lift.  The letter was in response to an employee inquiry regarding a company policy of allowing employees to unhook their lanyards when performing operations over water.  The employee asked whether this practice was allowable under OSHA’s construction standards (29 CFR 1926.453(b)(2)(v)).

In response to the questioner, OSHA reiterates that while no such allowance was provided in the actual text of the standard, OSHA’s existing cranes and derricks in construction rule — along with the new cranes and derricks in construction proposal — permits the practice.  As a result, OSHA concludes that it would be a de minimis violation of 29 CFR 1926.453(b)(2)(v) for employees to unhook their lanyards when performing work over water.  This, of course, makes sense as there is the possibility of a greater hazard to employees in the event of an aerial lift collapse over water if they are tied to the boom or basket.

Employers are encouraged to take note of this interpretation when developing their fall protection programs.   

Check out this interesting blog post from Frank Alvarez, head of Jackson Lewis’s Disability, Leave, and Health Management practice group:  Time to Revisit ADA Medical Inquiry Rules at "Loggerheads" with OSHA Policy.  The post describes the EEOC’s narrow interpretation of the ADA rule that employee medical inquiries be "job-related and consistent with business necessity" and questions whether such a narrow interpretation is counter to the underlying policies of the Occupational Safety and Health Act of 1970.     

 

OSHA has just announced that its Severe Violator Enforcement Program (SVEP) is effective June 18th.  The SVEP “concentrates resources on inspecting employers who have demonstrated indifference to their OSH Act obligations by willful, repeated, or failure-to-abate violations.” Under the program, an inspection of an employer meeting the criteria of an SVEP case may result in enhanced follow-up inspections of the worksite at issue, nationwide inspections of the same employer of related worksites, increased “company awareness” of OSHA’s enforcement actions against the company, and enhanced settlement provisions including possible corporate-wide agreements.  In addition, OSHA intends to prominently publicize — in press releases and on its website — those employers that are part of the program. 

The following types of cases are considered SVEP cases under the program:

  • A fatality/catastrophe inspection in which OSHA finds one or more willful or repeated violations or failure-to-abate notices based on a serious violation related to a death of an employee or three or more hospitalizations.
  • An inspection in which OSHA finds two or more willful or repeated violations or failure-to-abate notices (or any combination of these violations/notices), based on high gravity serious violations related to a “high-emphasis hazard.” A high-emphasis hazard is defined as a high gravity serious violation of specific standards related to fall hazards, amputation hazards, combustible dust hazards, silica hazards, lead hazards, excavation/trenching hazards, shipbreaking hazards, and petroleum refinery hazards.
  • An inspection in which OSHA finds three or more willful or repeated violations or failure-to-abate notices (or any combination of these violations/notices), based on high gravity serious violations related to highly hazardous chemicals, as defined in OSHA’s process safety management standard.
  • All egregious enforcement actions.

OSHA continues its emphasis on enforcement and the SVEP is another tool that employers should expect OSHA to use aggressively.  Employers should take some time now to review their safety and health management systems to ensure that they are fully compliant with OSHA rules and proactively addressing safety and health issues in the workplace.

OSHA has published a proposed rule that would revise requirements governing the prevention of slips, trips, and falls in general industry workplaces.  OSHA’s "Walking-Working Surfaces and Personal Protective Equipment (Fall Protection Systems)" proposed rule impacts virtually every general industry workplace in the country.  Slips, trips, and falls are one of the leading causes of OSHA recordable injuries and OSHA estimates that its proposed rule will prevent 20 fatalities and 3,500 serious injuries every year.

The proposed rule revises OSHA’s Subparts D and I of the general industry standards related to ladders, scaffolds, and fall protection, among other things.  The rules also include the general requirement that employers keep places of employment, passageways, storerooms and service rooms clean and in a sanitary condition, a requirement that has been widely applied by OSHA to a number of workplace hazards, including combustible dust.

Some of the key aspects of the proposal are:

  • OSHA reiterates the application of the general housekeeping requirement to combustible dust and seeks comment on whether this should be explicitly included in the final rule;
  • OSHA proposes several requirements for rope descent systems, commonly used in window cleaning operations;
  • OSHA reiterates the fundamental duty to provide fall protection in general industry when employees could fall a distance of 4-feet or greater; and
  • OSHA proposes to eliminate the use of body belts as part of personal fall arrest systems in general industry operations.

Given the breadth of this proposed rule, all general industry employers are encouraged to review it and comment on it.  Written comments, along with requests for a hearing, are due to the Agency by August 23, 2010.      

OSHA’s Cranes and Derricks in Construction final rule is currently under review at the Office of Management and Budget.  The rule was received by OMB on April 9, 2010, which means that OSHA could publish the rule by the end of July.  Construction employers who use cranes in their operations must prepare for what is sure to be a significant overhaul of OSHA’s rules for crane operations.

This final rule has been several years in the making.  It was developed by the Agency through negotiated rulemaking, whereby representatives of employers and organized labor work together with OSHA to develop a draft rule. Consensus was reached by the negotiated rulemaking committee in 2004 and the Agency has been preparing the rule ever since.

The proposal contained over 40 separate sections of detailed requirements in such areas as crane assembly, crane operation, inspections, and operator training and certification.  The most controversial provision in the proposed rule related to “Operator Qualification and Certification.” OSHA proposed that all crane operators be certified to operate a crane, principally by having the operators trained and tested by an “accredited” crane operator testing organization.  This provision alone was estimated by OSHA to cost employers $37.3 million.

Other key requirements proposed by the Agency included:

  • General contractors at construction worksites would be required to ensure that the ground at a worksite is firm, drained, and graded so that cranes used will have adequate support.
  • Employers operating cranes within 20 feet of power lines would be required to choose from a menu of different options to ensure the cranes do not strike energized lines, possibly injuring or killing employees. 
  • Employers would need to inspect cranes before every shift, once a month, and at least once a year.
  • All signal persons used in crane operations would need to be certified by a “qualified” evaluator, which the proposal defined as a person who has demonstrated that he or she is competent in accurately assessing whether the signal person understands the types of signals to be used, application of the signals, and crane operation and limitations, among other things.

While OSHA will allow employers time to come into compliance with the new requirements, construction employers should immediately review the final rule once it is published and start to make any necessary changes to their crane operations.

 

On Wednesday, May 12, at 3:00 pm ET, OSHA Assistant Secretary David Michaels will lead a special free webcast related to the issue of safety incentive programs.  Titled "A Conversation with Assistant Secretary for OSHA Dr. David Michaels:  What to do About Safety Incentives," the American Society of Safety Engineers (ASSE) event will discuss "the difference between appropriate and inappropriate safety incentives in the workplace."  Click here to learn more about the webcast.

The issue of safety incentive programs and their effect on the reporting of injuries and illnesses has been widely discussed within safety and health circles over the last year, as a result of the focus on these programs within OSHA’s Recordkeeping National Emphasis Program (NEP).  Sample employee questionnaires included in the recently renewed NEP ask the following questions about incentive programs:

  • In your workplace, are there prizes, rewards or bonuses to supervisors or managers that are linked to the number of injuries or illnesses recorded on the OSHA log?
  • In your workplace, are there demerits, punishment or disciplinary policies for reporting injuries or illnesses?
  • In your workplace, is there post-injury drug testing for all or most work-related injuries and illnesses?   

OSHA follows these with questions asking employees whether these types of programs encourage, discourage, or have no effect on the reporting of injuries and illnesses.

Safety incentive programs are ubiquitous and it is important for OSHA to provide guidance to employers about the programs that it views as having a negative effect on the reporting of injuries and illnesses.  This webcast is an excellent first start in that process and all employers are encouraged to listen in.  

OSHA has updated its Recordkeeping National Emphasis Program (NEP).  The NEP, initated originally in September, 2009, was designed to investigate whether, and to what extent, injuries and illnesses are being underreported by employers.  The original NEP, as well as the revision, targets employers with low rate establishments operating in historically high rate industries.  Click here for a Special Report on the Recordkeeping NEP.

The updated NEP makes three significant changes:

  • The expiration date has been extended until February 2012.
     
  • If OSHA begins an inspection of an establishment and determines that the establishment falls outside the targeted industries identified in the NEP, compliance officers are now instructed to proceed with the inspection.  In the original NEP, compliance officers were instructed to stop the inspection if they identified that an establishment was not in fact in one of the targeted NAICS codes.
     
  • Employee interview questionaires have been expanded to gather additional information on, among other things, recordkeeping policies and programs that may discourage the reports of injuries and illnesses.

OSHA’s update and extension of the NEP further shows how seriously the agency is taking allegations of underreporting of injuries and illnesses by employers.  Assistant Secretary Michaels was recently quoted as saying that "We’re gong to be looking at the books, and they had better be accurate."  Employers must continue to be vigilant in ensuring that their recordkeeping programs and practices are fully compliant with OSHA’s rules.

 

In moves designed to enhance the effectiveness of its enforcement activities, OSHA has unveiled a new “Severe Violator Enforcement Program” and a memorandum to Regional Administrators that has the effect of increasing penalties for employers receiving citations. These enhancements are further evidence of OSHA’s emphasis on enforcement and all employers must take note.

Severe Violator Enforcement Program

OSHA’s Severe Violator Enforcement Program (SVEP) “concentrates resources on inspecting employers who have demonstrated indifference to their OSH Act obligations by willful, repeated, or failure-to-abate violations.” Under the program, an inspection of an employer meeting the criteria of an SVEP case may result in enhanced follow-up inspections of the worksite at issue, nationwide inspections of the same employer of related worksites, increased “company awareness” of OSHA’s enforcement actions against the company, and enhanced settlement provisions including possible corporate-wide agreements.

The following types of cases are considered SVEP cases under the program:

  • A fatality/catastrophe inspection in which OSHA finds one or more willful or repeated violations or failure-to-abate notices based on a serious violation related to a death of an employee or three or more hospitalizations.
  • An inspection in which OSHA finds two or more willful or repeated violations or failure-to-abate notices (or any combination of these violations/notices), based on high gravity serious violations related to a “high-emphasis hazard.” A high-emphasis hazard is defined as a high gravity serious violation of specific standards related to fall hazards, amputation hazards, combustible dust hazards, silica hazards, lead hazards, excavation/trenching hazards, shipbreaking hazards, and petroleum refinery hazards.
  • An inspection in which OSHA finds three or more willful or repeated violations or failure-to-abate notices (or any combination of these violations/notices), based on high gravity serious violations related to highly hazardous chemicals, as defined in OSHA’s process safety management standard.
  • All egregious enforcement actions.

Administrative Enhancements to OSHA’s Penalty Policies

OSHA has also issued a memorandum to Regional Administrators that administratively enhances OSHA’s penalties. OSHA finds in the memorandum that currently “the Agency’s penalties are too low to have an adequate deterrent effect.” In effect, the memorandum revises OSHA’s penalty classification system, as currently outlined in its Field Operations Manual (FOM). Of particular note, OSHA is:

  • Expanding the time frame for considering an employer’s history of violations (when setting penalties) from three to five years.
  • Increasing penalties by 10 percent for employers that have been cited for any high gravity serious, willful, repeat, or failure-to-abate violations within the previous five years. 
  • Increasing the minimum proposed penalty for a serious violation to $500.
  • Calculating final penalties serially, unlike current practice where all of the penalty reductions are added and then the total percentage is multiplied by the gravity-based penalty to arrive at the proposed penalty.  (OSHA’s example in the memorandum results in an increase of approximately 50%.)

These changes to OSHA’s enforcement policies are significant.  Now more than ever, employers must take steps to evaluate their safety and health programs and proactively deal with safety and health issues at the workplace.

In a recently issued memorandum to Regional Administrators and State Plan Designees, OSHA has clarified its policy for citing the general industry personal protective equipment (PPE) standard, 29 CFR 1910.132(a), for failure to provide and use flame resistant clothing (FRC) in oil and gas well drilling, servicing, and production-related operations.  In the March 19 memorandum, OSHA provides guidance to its compliance officers (CSHOs) on when employers must provide and ensure the use of FRC and, thus, when citations under 29 CFR 1910.132(a) may be issued.

The memorandum sets the following specific citation guidance:

  • In drilling operations, FRC is usually not needed during initial rig up and normal drilling operations prior to reaching active hydrocarbon zones, unless other activities warrant their use.  Once active gas or hydrocarbon zones are reached, appropriate FRC must be worn by exposed employees working on the well site prior to drilling into identified gas or hydrocarbon zones.  FRC should also be worn when there is a history of fluid or gas kicks from underground producing zones.  And, once FRC is provided per these circumstances, employees should wear the FRC until the final casing is cemented and the well is effectively closed.
     
  • In well servicing operations, CSHOs are tasked with determining whether FRC is provided and worn during well servicing or workover operations, such as pulling wet string tubing, snubbing tubing, swabbing operations, etc.
     
  • In production-related operations, OSHA also concludes that the potential for flash fire exists, and advises CSHOs to specifically examine certain operations for citation, such as equipment openings, gauging, transfer of hydrocarbons, and maintenance operations on production equipment.

If citations are warranted, CSHOs are provided the following sample language to use:  "The employer failed to provide and ensure the use of flame-retardant treated clothing (FRC) necessary to protect employees from burns due to potential flash fires."

OSHA’s recent memorandum is important for employers in oil and gas well drilling, servicing, and production-related operations and they should thoroughly review it to ensure that their current practices are fully compliant with OSHA’s expectations.