Insight & Commentary on Occupational Safety & Health Issues
Acting Assistant Secretary of OSHA Jordan Barab issued a statement today announcing a soon-to-be-issued compliance directive to guide agency inspections for H1N1 in healthcare facilities. Click here to view the statement.
We will keep you posted in this space as the compliance directive is developed.
OSHA has launched its long-awaited Recordkeeping National Emphasis Program (NEP). Effective September 30, the NEP will subject employers in certain industries to comprehensive injury and illness records reviews. Employers in the targeted industries should take time now to review their recordkeeping logs and practices to prepare for an NEP inspection.
Here is a special report on the NEP, including a description of its scope, the conduct of inspections, and the treatment of musculoskeletal disorders under the program.
OSHA has declared that it lacks the congressional authority to ban the use of hazardous substances. OSHA made this statement in a letter of interpretation, published on the agency’s website, responding to a question specifically related to OSHA’s ability to ban hexavalent chromium in the workplace. OSHA agrees that “product substitution” is the best solution to eliminating the hazards from hexavalent chromium. However, the agency rejects the notion that it can ban its use or the use of any hazardous substance. According to OSHA, the authority to ban the use of hazardous materials has been delegated to the U.S. Environmental Protection Agency (EPA).
OSHA’s authority to mandate employers’ adherence to safe practices is provided by the Occupational Safety and Health Act of 1970 (OSH Act). While the OSH Act does not specifically allow OSHA to ban the use of hazardous substances, the agency has always taken a broad view of its regulatory authority. Thus, if banning the use of a hazardous substance were “reasonably necessary and appropriate” to provide a safe work environment, it could be argued that OSHA would have the authority to institute the workplace ban. However, the agency seems to have foreclosed that argument with its latest statement.
OSHA’s position is not simply of theoretical interest. It could be very important in upcoming OSHA regulatory actions. For example, the agency is preparing a proposal to regulate silica exposure comprehensively in the workplace. Many stakeholders have called for OSHA to ban the use of silica in abrasive blasting operations. This latest declaration from the agency would appear to take this possible regulatory approach off the table. It also could be important in OSHA’s diacetyl rulemaking, where product substitution is a significant issue.
OSHA has released its much anticipated recordkeeping National Emphasis Program (NEP). It became effective September 30. Click here to see the NEP.
We will be reviewing the document carefully and pass along to you the key aspects of the program.
OSHA’s Advance Notice of Proposed Rulemaking (ANPR) on combustible dust should be published soon in the Federal Register. The ANPR is currently under review by the Office of Management and Budget, the final step in the intergovernmental review process. Employers with combustible dust hazards in their worksites are encouraged to participate in the rulemaking process.
Combustible dusts are solids ground into fine particles, which can cause a fire or explosion when suspended in air under certain circumstances. Common examples of combustible dusts include metal (aluminum and magnesium), wood, plastic, rubber, coal, flour, sugar, and paper, among others. OSHA has identified a number of industries with combustible dust hazards, including agriculture, chemicals, food, grain, plastics, wood, paper, textiles, pharmaceuticals, tire and rubber manufacturing, and metal processing. While certain OSHA standards provide some protection against combustible dust, for example, Housekeeping (29 CFR 1910.22) and Electrical Equipment in Hazardous Locations (29 CFR 1910.307), OSHA does not have a single comprehensive rule to protect employees from combustible dust explosions.
Secretary of Labor Solis, in announcing the combustible dust rulemaking, stated that “OSHA is reinvigorating the regulatory process to ensure workers receive the protection they need while also ensuring that employers have the tools needed to make their workplaces safer.” We will continue to monitor closely developments in this area and update this blog when the ANPR is finally published in the Federal Register.
OSHA’s long-awaited proposed rule updating its Hazard Communication standard will be published in tomorrow’s Federal Register (September 30). Here is an advance version of the proposal.
We will provide more information on this important rulemaking in an upcoming post.
In a move widely applauded by both employer and employee groups, OSHA has updated its general industry and maritime personal protective equipment (PPE) standards to specifically allow the use of certain PPE designed according to current national consensus standards. OSHA’s final rule, “Updating OSHA Standards Based on National Consensus Standards; Personal Protective Equipment,” will bring greater certainty to compliance with OSHA’s PPE standards for head, eye, and foot protection and further encourage use of the latest protective technology. This final rule is the third in a series of updates OSHA is making to its rules to reflect the latest versions of national consensus standards.
With this final rule, employers are expressly allowed to use head, eye, and foot protection built in accordance with these recent national consensus standards:
Before promulgation of this final rule, OSHA’s PPE standards required employers to provide head, eye, and foot protection built in accordance with outdated national consensus standards (e.g., the 1986 ANSI standard for head protection). This caused confusion for employers and employees as the national consensus standards were continually updated and PPE available for purchase no longer reflected the outdated design specifications. Employers who provided the latest PPE to their employees could be subject to a de minimis notice by OSHA – a technical violation of OSHA’s standards not adversely impacting the safety and health of employees. While employers are still able to use certain older equipment, as a result of this final rule, employers now can use the latest technology in head, eye, and foot protection, certain in the knowledge that they will be in compliance with OSHA’s standards.
OSHA’s Hazard Communication/Globally Harmonized System proposed rule has been cleared by the Office of Management and Budget, paving the way for the agency to publish it for public comment. The proposed rule has been in the works for several years and the Obama Administration has made finalizing it a priority. If finalized, the proposed rule could significantly change the labels and Material Safety Data Sheets (MSDSs) that currently appear and accompany hazardous chemicals in the workplace.
OSHA’s existing Hazard Communication rule (“Haz Com”) requires chemical manufacturers and importers to analyze the hazards of the chemicals they produce or import, and prepare labels and MSDSs to inform downstream users of the hazards and needed protective measures. Haz Com also contains the core OSHA training requirements for informing employees about chemical hazards in the work environment.
Other countries also have developed labeling and MSDS requirements. While these rules are often similar to Haz Com, they differ in various ways, including the specificity of information required to be conveyed to end users. The differing requirements can cause confusion for chemical manufacturers, importers, and employers and employees.
As a result, in 2003 the United Nations adopted the Globally Harmonized System of Classification and Labeling of Chemicals, which standardizes and harmonizes these requirements. Countries are now adopting the Globally Harmonized System and OSHA, through this proposed rule, is looking to do the same.
Many employers are in favor of the rulemaking, seeing it as an opportunity to facilitate international trade and improve the effectiveness of communicating hazard information to employees. Others have raised concerns about having to re-learn a “new” Haz Com rule when many have grown accustomed to complying with the existing requirements. For its part, OSHA has claimed that adoption of the Globally Harmonized System will:
We will continue to monitor the status of the proposal and pass along any further updates.
With Labor Day behind us and schools back in session, concerns about the H1N1 influenza virus and seasonal flu are resurfacing. The Centers for Disease Control recently released Guidance for Businesses and Employers to Plan and Respond to the 2009-2010 Flu Season, including a helpful “toolkit” to aid in such planning. OSHA also has published important guidance that employers should review.
Employers are finding that the workplace issues arising under H1N1 are numerous, varied, and complex. Many have questions about the legal and practical impact H1N1 will have on their businesses. More and more are seeking assistance in developing written H1N1 policies and creating business continuity plans during a time when they could experience substantial absenteeism. To help employers deal with these issues, Jackson Lewis has developed the following free resources:
We will continue to keep you apprised of developments with respect to H1N1 and seasonal flu and pass along any additional information to aid in your preparedness plans.
In a speech recently before the Small Business Administration’s safety and health forum in Washington, DC, Richard E. Fairfax, OSHA’s Director of Enforcement and Construction Programs, provided an update on the agency’s key enforcement initiatives. Of particular note, Mr. Fairfax stated:
OSHA also has issued two important new enforcement documents. The Site Specific Targeting Program (SST) for 2009, “is OSHA’s main programmed inspection plan for non-construction workplaces that have 40 or more employees.” To compile the SST, OSHA surveyed 80,000 large employers in historically high-rate industries, requiring them to report their injury and illness rates. Employers in manufacturing who reported a particularly high “Days Away, Restricted, or Transferred (DART) Rate” (over 8.0) or “Days Away from Work Injury and Illness (DAFWII) Case Rate” (over 6.0) should expect an SST inspection within the next year. Non-manufacturing employers who reported a DART Rate over 15.0 or DAFWII Rate over 13.0 also should expect an inspection under the SST. Nursing and personal care facilities are treated separately under the SST and will be subject to an inspection if they reported a DART Rate over 17.0 or a DAFWII Rate over 14.0.
OSHA also reissued its petroleum refinery NEP. This continues OSHA’s focus on enforcing its process safety management (PSM) standard in refineries. Employers in NAICS code 324110 should review their PSM programs in anticipation of an OSHA inspection of their facilities.
