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. 

  

OSHA has embarked on a new National Emphasis Program (NEP) targeting hexavalent chromium in the workplace, along with other toxic substances found in conjunction with hexavalent chromium.  OSHA’s intent with the NEP is to "target workplaces with occupational exposures to hexavalent chromium" and certain other toxic substances (e.g., antimony, arsenic, cadmium, lead, iron oxide) to encourage compliance with applicable standards.  In 2006, OSHA issued updated standards regulating exposures to hexavalent chromium compounds in general industry, construction, and maritime.  The NEP was effective February 23, 2010.

Under the NEP, inspections will focus on industries where hexavalent chromium overexposures are known to occur, including:  electroplating; aircraft manufacturing; ship building and repair; inorganic dye and pigment manufacturing; iron and steel mills; ferrous foundries; chrome colors and other inorganic pigments.  Establishments with fewer than 10 workers will be included in the NEP.

OSHA’s Directorate of Evaluation and Analysis will prepare for each Area Office a master inspection list for the office to use in planning inspections.  Area Offices are given flexibility to schedule inspections within a specified inspection cycle, in order to make efficient use of resources.  The inspections will be conducted by an Industrial Hygiene Compliance Officer, trained in the hazards of hexavalent chromium.

At the opening conference, the compliance officer will verify that hexavalent chromium or other identified toxic substances are present in the workplace and if they are, the compliance officer will proceed with the inspection.  The compliance officer is instructed to consider and evaluate worker exposures and compliance in activities including, but not limited to:  regular operations; setup and preparation for regular operations; making adjustments during operations; cleaning of the process area; scheduled and unscheduled maintenance; implementation of engineering controls; use of PPE; medical surveillance programs; and worker training and education.  If there are any safety hazards noted, these may be referred for a safety inspection.

This NEP is another in a series of enforcement initiaitives that OSHA is undertaking.  Employers with operations with hexavalent chromium or the other toxic substances included in the NEP must review the NEP and prepare for an inspection.                

Indiana Governor Mitch Daniels has signed into law the “Possession of Firearms and Ammunition in Locked Vehicles Law.”  The law bars employers from adopting any rule or policy prohibiting employees, including contract employees, from storing firearms and ammunition out-of-sight in their locked vehicles.  Effective July 1, 2010, the law applies only to persons who may possess a firearm or ammunition legally.  It does not apply to the possession of a firearm, ammunition, or other device for which an individual must possess a valid federal firearms license issued under federal law (18 U.S.C. § 923).

In general, the gun law precludes employers in Indiana from adopting or enforcing any policy or rule that “prohibits, or has the effect of prohibiting, any employee, including a contract employee, from possessing a firearm or ammunition that is locked in the trunk of the employee’s vehicle, kept in the glove compartment of the employee’s locked vehicle, or stored out of plain sight in the employee’s locked vehicle.”

The law includes several broad exceptions, however.  Specifically, it permits employers to ban the possession of a firearm or ammunition on school property, property that is being used by a school for a school function, or on a school bus.  Employers also may prohibit employees from bringing firearms or ammunition on the property of:
 

  • a child caring institution;
  • an emergency shelter care child caring institution;
  • a private secure facility;
  • a group home;
  • an emergency shelter care group home;
  • a child care center;
  • a penal facility;
  • an approved post-secondary educational institution;
  • a domestic violence shelter;
  • a person’s residence; or
  • a location in violation of federal law.

Property that either is subject to the United States Department of Homeland Security’s Chemical Facility Anti-Terrorism Standards (issued April 9, 2007), and licensed by the United States Nuclear Regulatory Commission (under Title 10 of the Code of Federal Regulations), or is owned by a public utility that generates and transmits electric power or a department of public utilities also is exempt from the gun law.  Finally, the law permits employers to ban the possession of a firearm or ammunition in an employee’s “personal vehicle” if the employee is a “direct support professional” who “works directly with individuals with developmental disabilities” and uses his personal vehicle to transport such individuals.

Employers in Indiana must take note of this new law and review their policies concerning the possession of firearms or ammunition on company property, including company-owned vehicles.  

We will continue to keep you apprised of developments in this area.

The Occupational Safety and Health Administration has released a list of about 15,000 workplaces with the highest numbers of injuries and illnesses in the nation for their industries, based on OSHA’s most recent survey. The agency stated that it has sent a letter to these workplaces, along with copies of their injury and illness data, and a list of the most frequently cited OSHA standards for their specific industry.

Dr. David Michaels, Assistant Secretary of Labor for OSHA, said in the March 9, 2010 announcement, “Receipt of this letter means that workers in that particular establishment are being injured at a higher rate than in most other businesses of its kind in the country.” He added, “Employers whose businesses have injury and illness rates this high need to take immediate steps to protect their employees.”

Mei Fung So prepared this post.

OSHA has just announced that it is extending by 15 days the public comment period for its proposal to add a separate column on the OSHA 300 log for employers to record work-related musculoskeletal disorders (MSDs).  Those wishing to comment on the proposed rule must now do so by March 30, 2010.  Four separate stakeholders had requested an extension of the comment period. 

Under the proposed rule, employers would be 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 definition. For purposes of the proposal, the agency defines 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 is proposing 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 is concerned that this language creates confusion among employers about recording MSDs. OSHA’s proposal attempts to clarify that employers must record abnormal conditions resulting in minor musculoskeletal discomfort, regardless of whether the conditions include objective signs of an injury or illness – so long as all of the other criteria for recording are met.

This is an important rulemaking and all stakeholders are encouraged to participate in the rulemaking process.

Employers may order employees to take seasonal and H1N1 vaccines, the nation’s principal workplace safety and health agency has stated.  OSHA offered this opinion in a letter of interpretation, published recently on the agency’s website.

The letter is addressed to Congresswoman Marcy Kaptur (D-OH), who relayed to OSHA a letter from a constituent asking whether her employer could mandate that she accept a flu shot. According to the constituent, her employer had “threatened the employees with mandatory time off” if they did not accept the flu shots.

OSHA responded, first, by reiterating its guidance that healthcare employers should offer both the seasonal and H1N1 vaccines to employees and that employees should be informed of the vaccines’ benefits. It added, however, that employers may require employees to take the vaccines, even though OSHA has no published standard containing this requirement. OSHA also provided a cautionary note: an employee who refuses to be vaccinated because of a reasonable belief that he or she has a medical condition that creates a real danger of serious illness or death may be protected from job retaliation under Section 11(c) of the OSH Act, which prohibits discrimination against employees who exercise their safety and health rights.

The issue of whether employers can require employees to take flu vaccines has been controversial for both employers and employees. OSHA appears to be stepping directly into this controversy. Even though media attention over the H1N1 virus has subsided for the moment, the issue of mandatory vaccines for employees is one that likely will recur during the next flu outbreak.

While employers should be aware of OSHA’s interpretation, they also must be mindful of other laws and regulations that may be applicable to issues affecting mandatory vaccinations. Collective bargaining agreements also may be relevant. Employers should consider all of this information before adopting any vaccination policies.