Health and safety standards in the workplace are changing at a rapid pace. The Occupational Safety and Health Administration (OSHA) has recently made significant changes to its regulatory structure and announced several new enforcement initiatives under the leadership of Secretary of Labor, Hilda Solis.
These developments require close attention as all private sector employers are potentially subject to OSHA inspections (and the potential of resulting civil and criminal liability) under the Occupational Safety and Health Act of 1970 (OSH Act). The following OSHA developments are the most noteworthy:
Rule Proposals, Initiatives, And Guidance:
- Combustible Dust:
OSHA has announced that it will be issuing an Advance Notice of Proposed Rulemaking and convening stakeholder meetings on the regulation of combustible dust in the workplace. Combustible dust is comprised of solids finely ground into fine particles, fibers, chips, chunks or flakes that can cause a fire or explosion when suspended in air under certain conditions. Because the materials that may form combustible dust include metals, wood, coal, plastics, biosolids, sugar, paper, soap, dried blood, and certain textiles,OSHA has noted that an explosion hazard may exist in a broad spectrum of industries. According to OSHA, since 1980,more than 130 workers were killed, and more than 780 injured, in combustible dust explosions. - Diacetyl Food Flavoring:
Secretary Solis also recently announced that OSHA is working on proposing regulations on exposure to diacetyl food flavoring. OSHA convened a Small Business Regulatory Enforcement Fairness Act (SBREFA) panel on May 5 designed to evaluate a proposed rule's impact. Workers exposed to food flavorings containing diacetyl may be at risk of developing a potentially fatal lung disease. - Proposal To Reduce Paperwork For Employers Complying
With The Lead In General Industry Standard:
OSHA is currently seeking comments regarding suggested changes to the information collection requirements contained in the Lead in General Industry Standard and specifically, ways to minimize the burden on employers caused by such requirements. The information collection requirements in the Standard require the establishment of a compliance program, exposure monitoring, and medical surveillance. - Proposed Rule Regarding Cranes And Derricks In
Construction:
OSHA has proposed a rule to protect employees from the hazards associated with hoisting equipment during construction. New requirements for employers in construction zones would include: a requirement to determine whether the ground is sufficiently firm, graded, and drained prior to any assembly or use of hoisting equipment; requirements for the inspection of hoisting equipment prior to its use, as well as required monthly and annual inspections for such equipment; requirements to keep certain minimum distances from power lines during hoisting activities; and certification and qualification requirements for crane operators to ensure adequate knowledge of their equipment. - Guidance On Exposure To Silica In The Construction
Industry:
Last month, OSHA issued guidance on exposure to crystalline silica in the construction industry. The 70-page publication describes procedures for minimizing exposure to crystalline silica by such methods as "vacuum dust systems" and "wet methods." Exposure to crystalline silica may cause such diseases as silicosis and lung cancer. Quartz and asphalt filler are two common construction materials that contain crystalline silica. - National Emphasis Programs:
Over the course of the last two years, OSHA has announced several new National and Local Emphasis Programs. These programs are designed to focus safety and health enforcement efforts on particular regulatory subjects and industries. The number of these programs initiated by OSHA is expected to increase at a faster rate under the direction of Secretary Solis and the Obama Administration. In particular, subjects such as recordkeeping requirements, and industries such as primary metals and food flavorings are expected to receive additional scrutiny.
Modifications To Existing Regulations:
- Clarification Regarding Employer-Provided Personal
Protective Equipment & Training:
Earlier this year, OSHA amended its regulations on employer-provided personal protective equipment (PPE) and training with regard to the issue of an employer's liability under the regulations. Specifically, the amendments, which went into effect January 12, 2009, added language to the existing regulations clarifying that the PPE and training requirements impose a compliance duty with respect to each and every employee covered by the OSHA standards – thus, noncompliance may expose employers to liability on a per-employee basis. The amendments were drafted in response to decisions of the Occupational Safety and Health Review Commission (OSHRC) indicating that differences in wording among the various PPE and training provisions in OSHA safety and health standards affected the Agency's ability to treat employers' OSHA missteps as separate violations. It should be noted, however, that other than these liability clarifications, the amendments add no new compliance obligations. (The regulations on employer-provided PPE were issued in November, 2007, and went into effect in May, 2008). - Revisions To The Marine Terminals Standard And
Longshoring Standard:
In December, 2008, OSHA made revisions to its Marine Terminals Standard and its Longshoring Standard. The regulations, which became effective April 9, 2009, adopt new requirements related to the practice of lifting two intermodal containers together, one on top of the other, connected by semi-automatic twistlocks, in a process known as a "vertical tandem lift" (VTL). The new provisions are based on objective research, industry experience with VTLs, and other industry standards and guidelines.
OSHA Litigation:
The following two recent Court of Appeals decisions have eliminated uncertainty and provided guidance for employers regarding OSHA's regulations and its enforcement program:
- Public Citizen Health Research Group v. United
States Department Of Labor ("Public
Citizen"):
In late February, the Third Circuit upheld almost all of OSHA's hexavalent chromium rule from challenge by a union and industry groups. The hexavalent chromium rule, issued over three years ago, regulates occupational exposure to chromium by requiring employers to use engineering and workplace practice controls to ensure that employees are not exposed to chromium in an excess of a specific permissible exposure limit (PEL). The rule also requires education and medical surveillance of affected employees. The rule was challenged on grounds that OSHA's adoption of its specific PEL was not supported by substantial evidence and that OSHA's decision that notification requirements would only be triggered after the PEL was exceeded, was based on improper findings. The Third Circuit upheld the appropriateness of OSHA's specific PEL, but agreed that OSHA's requirement to notify employees of exposure monitoring results, only after exposures were in excess of the PEL, was not adequately explained by the agency. - Secretary Of Labor v. Summit Contractors, Inc.
(Summit):
Only three days later, the Eighth Circuit reversed an OSHRC decision holding that OSHA's multi-employer citation policy for employers at construction sites violated OSHA's regulations defining construction employers' obligations. The multi-employer citation policy allows OSHA to issue citations to general contractors who have the ability to prevent or abate hazardous conditions created by subcontractors through the reasonable exercise of supervisory authority, regardless of whether the general contractor created the hazard or whether its own employees were exposed to the hazard. In Summit, OSHA cited a general contractor because a subcontractor's employees worked on scaffolds without fall protection. After the OSHRC vacated the citation, the Eighth Circuit reversed. The Eighth Circuit deferred to the Secretary's interpretation of the construction regulation finding that it was unambiguous and that it did not preclude OSHA from issuing citations to employers when their own employees were not exposed to any hazards.
Both decisions were considered to be victories for OSHA, as the decisions highlighted OSHA's power to exercise its rulemaking authority and to implement new enforcement measures.
Legislative Developments:
- "Protecting America's Workers
Act"
The recently proposed "Protecting America's Workers Act," (H.R. 2067, introduced 4/23/2009) (PAWA) provides for increased criminal and civil penalties under the OSH Act. PAWA was introduced in April by Representative Lynn Woolsey and a similar bill is expected to be introduced in the Senate. In addition to increasing penalties under the OSH Act, PAWA would extend criminal liability to corporate officers, and it would expand the Act's coverage to government workers. Notably, President Obama was a co-sponsor of an earlier version of the bill. - "Nurse And Health Care Protection Act Of
2009"
The "Nurse and Health Care Protection Act of 2009," (H.R. 2381), introduced last month, would direct OSHA to promulgate a standard to reduce injuries to patients, direct-care registered nurses, and other health care workers, by establishing a "safe patient handling and injury prevention standard" (the Standard). Specifically, the Act would require OSHA to publish a proposed rule to require health care employers to implement the Standard. Employers would be required to (among other requirements): use engineering controls for patient lifting and repositioning to eliminate manual lifting of patients by health care workers; to obtain input from direct-care registered nurses, health care workers, and employee representatives of such workers in developing and implementing a safety plan; to establish and maintain a data system that tracks trends in injuries relating to the application of the Standard; and to establish a documentation and training program in accordance with the Standard.
Because this area of the law is likely to change quickly, it is important to contact counsel prior to implementing any major health or safety initiative in the workplace with regard to the issues outlined above.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
