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:
 

  • ANSI Z89.1-2003 for head protection;
  • ANSI Z87.1-2003 for eye protection; and
  • ASTM F-2412-2005 and ASTM F-2413-2005 for foot protection.

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final rule, OSHA’s PPE standards required employers to provide head, eye, and foot protection built in accordance with outdated national consensus standards (e.g., the 1986 ANSI standard for head protection).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as the national consensus standards were continually updated and PPE available for purchase no longer reflected the outdated design specifications.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:

  • Provide consistent information and definitions for hazardous chemicals;
  • Address stakeholder concerns regarding the need for a standardized format for MSDSs; and
  • Increase understanding of hazardous chemicals by using standardized pictograms and harmonized hazard statements.

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:
 

  • A webinar recorded in May 2009 providing an overview of the legal issues that must be considered in preparing for an H1N1 pandemic. In this webinar, we consider the potential OSHA, ADA, FMLA, FLSA, HIPAA and state law issues that may arise as employers respond to H1N1.
  • A sample handbook policy discussing some of the critical points employers may want to consider communicating to employees.
  • An article discussing the CDC’s recent Guidance for Businesses and Employers to Plan and Respond to the 2009-2010 Flu Season, including a link to the Guidance and the “toolkit” prepared by the CDC.

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 will be issuing another update to its Field Operations Manual (FOM) in November 2009. The FOM guides OSHA’s compliance officers in the conduct of their inspections.

     

  • OSHA’s Enhanced Enforcement Program (EEP) is being revised to focus on fatalities, serious hazards and hazards identified in OSHA’s National Emphasis Programs, and to mandate follow-up inspections.

     

  • The following NEPs are now in the works: food flavorings; primary metals; hexavalent chromium; and recordkeeping.

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.

The Centers for Disease Control and Prevention, anticipating a spread of the H1N1 flu, has released new guidelines to help businesses and employers prepare now for the impact seasonal and H1N1 flu could have on employers, employees, and operations.

The guidelines urge employers to work with employees to develop and implement plans that can reduce the spread of flu.  They push for the preparation of plans that address such points as encouraging employees with flu-like symptoms to stay home, operating with reduced staffing and, where feasible, having employees who are at higher risk of serious medical complications from infection work from home.

Employers also might cancel non-essential face-to-face meetings and travel, and space employees farther apart in the workplace, the guidelines say.

The guidelines provide a list of “Actions Employers Should Take Now,” including:

  • Review or establish a flexible influenza pandemic plan and involve employees in developing and reviewing the plan;
  • Conduct a focused discussion or exercise using the plan, to find out ahead of time whether the plan has gaps or problems that need to be corrected before flu season;
  • Have an understanding of normal seasonal absenteeism rates and know how to monitor personnel for any unusual increases in absenteeism through the fall and winter;
  • Allow sick workers to stay home without fear of losing their jobs;
  • Develop other flexible leave policies to allow workers to stay home to care for sick family members or for children if schools dismiss students or child care programs close; and
  • Share your influenza pandemic plan with employees and explain what human resources policies, workplace and leave flexibilities, and pay and benefits will be available to them.

We will keep you apprised of other developments as the fall flu season approaches.

A special thanks to Mei Fung So of Jackson Lewis who prepared this blog post.

OSHA has announced a new National Emphasis Program (NEP) to focus enforcement resources on process safety management (PSM) hazards in chemical facilities across the country. Chemical facilities with PSM-covered processes should review their programs now to ensure full compliance with OSHA standards.

The NEP, effective July 27, 2009, is billed as a “new approach for inspecting PSM covered facilities” and “allows for a greater number of inspections by better allocation of OSHA’s resources.” Chemical facilities in the Northeast (OSHA’s Region 1), the Plains States (OSHA’s Region VII), and the Northwest and Alaska (OSHA’s Region X) will be subject to programmed inspections under the NEP. The NEP will apply to unprogrammed inspections for PSM-covered processes OSHA-wide.

In its instructions to compliance officers regarding the scope of inspections, OSHA emphasizes implementation of the PSM standard over documentation:

Based on past inspection history at refineries and large chemical plants, OSHA has found that employers may have an extensive written process safety management program, but insufficient program implementation. Therefore, CSHOs should verify the implementation of PSM elements to ensure that the employer’s actual program is consistent with their written program.

Compliance officers also are instructed at the start of inspections to request numerous documents from employers, some of which are not required to be kept under the standard (e.g., a list of all PSM-covered process/units in the complex, a summary description of the facility’s PSM program, safe upper and lower operating limits for certain covered units). According to OSHA, however, they represent “documents typically compiled by employers with PSM-covered processes at their facilities.” Furthermore, OSHA will examine under the NEP all contractors – including construction contractors – working on or adjacent to PSM-covered units being inspected.

This is just the first of several key NEPs OSHA will be releasing. OSHA’s Recordkeeping NEP should be released within days, and other NEPs on Food Flavorings, Oil and Gas Well Drilling, Primary Metals, and Hexavalent Chromium are in the works.

We will continue to keep you apprised of all of OSHA’s enforcement initiatives.

President Barack Obama has announced he intends to nominate Professor David Michaels to be the Assistant Secretary of OSHA. Professor Michaels is the interim chair of the Department of Environmental and Occupational Health at the George Washington University School of Public Health in Washington, D.C. If confirmed, Professor Michaels will join Acting Assistant Secretary of OSHA Jordan Barab in the political leadership of the safety and health agency.

In addition to his current position with George Washington University, Professor Michaels has a long history in public health. During the Clinton Administration, Professor Michaels was Assistant Secretary for Environment Safety and Health at the Department of Energy, where he played a role in overseeing safety and health issues for employees at nuclear weapons facilities.

While it is too early to predict Professor Michaels’s likely priorities, in past writings, he has indicated the need for OSHA:  (1) to issue a workplace injury and illness prevention program rule; and (2) to develop an electronic recordkeeping and reporting system. Both would further past and present OSHA initiatives.  

During the Clinton Administration, OSHA developed, but never issued, a Safety and Health Program rule which would have required employers to implement a broader process for preventing injuries and illnesses in the workplace. Should Professor Michaels be confirmed, he may press his interest in an injury and illness prevention program rule, likely reigniting discussions regarding the need for employers to implement safety and health programs at their worksites. 

A potential electronic recordkeeping system also fits neatly into OSHA’s current enforcement efforts. OSHA will be releasing a Recordkeeping National Emphasis Program (NEP) in the next few weeks, which will focus enforcement resources on recordkeeping inspections in certain establishments. OSHA will perform thorough records reviews and investigate the extent to which employers may be discouraging workers from reporting injuries and illnesses. The Department is intent on rooting out underreporting.  An electronic recordkeeping system could make it easier for the agency to monitor worksite injuries and illnesses and possible underreporting.

No information has been released as to when Professor Michaels’s confirmation hearings may be held. This announcement, however, may calm the uncertainty that had been swirling around OSHA as to who would be the permanent political head of the agency.

We will, of course, continue to keep you apprised of developments with respect to the nomination.

OSHA has announced it is targeting for inspections federal agency workplaces staffed by federal employees or by contractors whose work is supervised on a day-to-day basis by federal agency personnel. The agency initiative will focus enforcement resources on those worksites experiencing a high number of lost time injury cases. Employers who work as contractors to federal agencies should review the targeting program and prepare for a possible inspection – particularly if they have employees performing hazardous work.

The new inspection targeting program – “FEDTARG 09” effective June 16, 2009 – directs inspections at federal agency establishments that experienced large numbers of lost time injuries in fiscal year 2009, as reported by the federal Office of Workers Compensation Programs. OSHA regional offices are directed to develop a primary inspection list that will include 100% of the establishments within the region reporting 100 or more lost time cases, 50% of the establishments reporting 50-99 lost time cases, and 10% of the establishments reporting 20-49 lost time cases. All sites on the primary inspection list must be inspected.

Contractors who are supervised by federal workers should take note of this and prepare. Inspections conducted under FEDTARG 09 will be comprehensive safety inspections. The inspections also will cover ergonomics, with compliance officers instructed to consult with the region’s ergonomics coordinator on musculoskeletal disorder issues.

Should the OSHA compliance officer see contractors performing work that is not being supervised by a federal agency worker, the officer may open up another inspection relating to the contractor specifically, if the compliance officer observes any hazards. In short, contractors performing work on federal agency worksites are fair game under FEDTARG 09.

Acting Assistant Secretary of Labor Jordan Barab, in announcing the program, stated, “OSHA’s mission of protecting worker safety doesn’t begin and end with private industry.” That is true. In this instance, however, it does not begin and end with federal employees either. FEDTARG 09 targets both federal agencies and private employers, and both need to be prepared.

Citing the high number of construction fatalities in Texas, Secretary of Labor Hilda Solis announced recently that OSHA will start a new enforcement initiative targeting the construction industry in that state. Secretary Solis made the announcement in San Antonio at the annual conference of the American Society of Safety Engineers. Construction employers in Texas should take note of this new initiative and ensure that they continue to be fully compliant with OSHA standards.

While there are few details of the new enforcement initiative available, Secretary Solis stated that:

  • Beginning in July, OSHA will increase the number of inspectors in Texas; and
  • Inspectors will be authorized to launch an immediate investigation of a construction worksite, whenever they observe “unsafe scaffolds, fall risks, trenches or other hazards.”

Secretary Solis stated that in 2008, there were 67 construction fatalities in Texas and in 2009 there already have been 33 fatalities reported. According to the Secretary, more workers die in Texas than in any other state.

This initiative is just one part of OSHA’s expanded enforcement efforts under the new Labor Secretary. OSHA will be hiring over 100 new inspectors and issuing five new National Emphasis Programs.  In San Antonio, Secretary Solis reiterated her commitment to more enforcement: “As I have said since my first day on the job – the U.S. Department of Labor is back in the enforcement business.”

We will, of course, keep you informed as more details of this and other enforcement initiatives become available.