Occupational Safety and Health Administration Regulatory Update

Gary Auman

Gary Auman (www.dmfdayton.com) is a Partner in the law firm of Dunlevey, Mahan & Furry in Dayton, Ohio. He graduated with an electrical engineering degree from the University of Louisville in 1969, and a law degree from The Ohio State University in 1976. Since then, his practice has focused on defending employers in workers’ compensation and OSHA cases. In 2002, Mr. Auman was awarded the Distinguished Service to Safety Award by the National Safety Council. He has worked with OSHA in its development of safety and health standards, and he has defended OSHA cases in several federal appellate courts. Mr. Auman also represents 4 national and regional trade associations in the construction industry. He can be reached at gwa@dmfdayton.com.

December 1, 2013

With the government shutdown in October, there has
been some uncertainty about the status of the Occupational Safety and Health
Administration (OSHA). Now that the government is back up and running, OSHA is
resuming operations. During the shutdown, all OSHA litigation matters were put
on hold while the Department of Labor attorneys who represent OSHA, as well as
Administrative Law Judges with the Occupational Safety and Health Review
Commission, were temporarily furloughed, pending the conclusion of the shutdown.
In addition, most OSHA Compliance Officers
were temporarily
furloughed and OSHA inspections declined by 84% during
the shutdown. A skeleton staff of Compliance Officers and other administrative
personnel remained on duty to handle imminent danger situations and to respond
to catastrophic injury reports. All rulemaking issues were put on hiatus
pending the outcome of the shutdown.

Crystalline Silica

Now that the shutdown is over, OSHA rulemaking has
started to move forward again. On the top of the list of upcoming rules is a
proposed OSHA standard for crystalline silica. The fact that we are dealing
with a proposed rule means we are 1 step short of having a final rule with
regard to new exposure limits and requirements for employee exposure to crystalline
silica. The proposed rule establishes an action level for crystalline silica at
25 micrograms per cubic meter of air for an 8–hour day. The permissible
exposure limit for crystalline silica has been reduced from 250 micrograms per
cubic meter to 50 micrograms per cubic meter, averaged over an 8–hour day. This
is an 80% reduction in the permissible exposure limit.

The proposed standard also
requires that worker access be limited in areas in which they might be exposed
to crystalline silica above the permissible exposure limit. The standard also
requires the use of engineering and/or administrative controls to control dust
exposure before personal protective equipment may be used as a means of
reducing breathing zone exposure to crystalline silica. In other words, when
you believe your employees are going to be exposed to crystalline silica, you
will be required to do exposure monitoring. If you find that you are above the
permissible exposure level, you must use engineering controls such as wetting
down dust that may contain silica, using localized exhaust or dust collection
systems to remove crystalline silica dust from the employees’ breathing zone,
or you must implement administrative controls to reduce the exposure to below
the permissible exposure limit.

If engineering and
administrative controls do not reduce the employee exposure to below the
permissible exposure limit, respirators are permissible. Please remember that
if you require employees to wear respirators, you must also have a personal
respirator protection program as required under 1910.134 of Title 29 of the
Code of Federal Regulations.

Also, for any employees who are
exposed above the permissible exposure limit for 30 days or more per year, you
are required to offer the employee medical examinations including chest x–rays
and pulmonary function tests every 3 years. Remember that the permissible
exposure limit is measured in the breathing zone, without a respirator. Even
though exposure inside a respirator will be below the permissible exposure
limit, the examinations must still be offered. The standard also requires that
employers train their workers on how to limit their exposure in operations that
result in any silica exposure. Finally, employers are required to keep records
of worker exposures and medical examinations.

As you can see, this new silica
standard is somewhat onerous as it applies to construction contractors. Do not
forget that the application of this standard applies to your employees even if
the dust to which your employees are exposed is not generated by you. For
example, consider a job site on which your employees are performing insulation
work in an area where another contractor’s employees are sawing concrete and
are not using a dust collection system or wetting the dust they are generating.
In this situation, you would definitely be required to do initial exposure
monitoring for your employees to determine whether they are being exposed for
respirable silica at or above the action level. In most cases like this, you
would not have any rights to require the other contractor to either wet down
the dust or to employ some form of dust collection. However, in this situation,
it would be a good idea to document your request to the other contractor to
eliminate or minimize any dust being generated by its employees. This will
demonstrate that you have taken appropriate steps with engineering or
administrative controls to reduce your employees’ exposure to dust and, failing
that, you are using personal respiratory protective equipment.

Following issuance of the
proposed rule in September 2013, OSHA established December 11, 2013 as the
cutoff for written comments and set March 4, 2014 as the date for public
hearings. OSHA initially established November 12, 2013 as the deadline for
submitting a notice of intention to appear at an informal public hearing. As a
result of the government shutdown, and requests made by various stakeholders,
these dates have been modified. As of the writing of this article, the deadline
to submit written comments is now January 27, 2014; the deadline to submit
notice of intent to appear at an informal public hearing has been rescheduled
for December 12, 2013; and the public hearings are scheduled to begin on March
18, 2014. OSHA anticipates that public hearings will continue for several
weeks.

Tracking Workplace Injuries and Illnesses

In an OSHA news
release dated November 7, 2013, the agency issued a proposed rule “to improve
workplace safety and health through improved tracking of workplace injuries and
illnesses.” The issuance of this proposed rule followed the release of OSHA’s
annual occupational injuries and illness report, which indicated that 3 million
workers were injured on the job in 2012. See page 36 for more information.

Dr. David Michaels, the Assistant
Secretary of Labor for Occupational Safety and Health, was quoted as stating,
“With the changes being proposed in this rule, employers, employees, the
government, and researchers will have better access to data that will encourage
earlier abatement of hazards and result in improved programs to reduce
workplace hazards and prevent injuries, illnesses, and fatalities. The proposal
does not add any new requirement to keep records; it only modifies an
employer’s obligation to transmit these records to OSHA.”

OSHA reports that it developed
this proposed rule following a series of meetings held with stakeholders in
2010 to gather information about electronic submission of organization–specific
injury and illness data. According to the agency, “OSHA is proposing to amend
its current recordkeeping regulations to add requirements for the electronic
submission of injury and illness information employers are already required to
keep under existing standards.” The initial proposal will apply to establishments
of more than 250 employees, requiring them to electronically submit their
records to OSHA quarterly. It is also proposed that “establishments with 20 or
more employees, in certain industries with high injury and illness rates, be
required to submit electronically only their summary of work–related injuries
and illnesses to OSHA once a year.” At this time, the scope of those “certain
industries”—and whether or to what degree they include the National Insulation
Association (NIA) membership base—is not defined.

As with any such proposed rule,
the public has 90 days—through February 16, 2014—to submit written comments.
OSHA has scheduled a public meeting concerning the proposed rule in Washington,
D.C. on January 9, 2014.

Hazard Communication

The preceding 2
sections cover new regulatory initiatives by OSHA; this part of our update is
intended to discuss the new hazard communication standard and the December 1,
2013 date for employers to have completed training under the standard.

 By the time this article is published, the date
will have passed; but it is important that all readers be aware of the fact
that this training requirement applies to everyone. If
you have not completed training prior to December 1, 2013, this is something
you should take care of immediately. Under the new hazard communication
standard, the training required covers the new labelling requirements under the
new standard, as well as training employees to understand information provided
on the newly formatted safety data sheets.

Training for employees on the
new labels required by OSHA includes how to interpret signal words that are
required on the labels, pictograms, hazard statements, and precautionary
statements. Employees also are to be trained on how to use information found on
the new labels.

“Signal words” are those words
that are used to indicate the relative level of severity of the hazard. There
are only 2 different signal words available for use: “danger,” which is used
for more severe hazards; and “warning,” which is used for less severe hazards.
The key to this training is to be sure employees understand that the signal
word that appears on the label identifies the most severe hazards posed by the
material.

Employees also need to be aware
that there are 8 pictograms that may appear on any label. There are pictograms
for flammables, oxidizers, irritants and sensitizers, explosives, corrosives,
gases under pressure, carcinogens, and materials with acute toxicity. Each of
these 8 categories has its own pictogram, and it is important that employees
understand each pictogram and what it means to them if it appears on the label
of the material they are about to use.

Hazard statements are used to
describe the nature of the hazard posed by the material and, where appropriate,
the degree of that hazard. Employees must be instructed that all applicable
hazard statements will appear on the material label. Precautionary statements
that also may appear on the label are phrases that describe recommended
measures that should be taken by employees to minimize or prevent any adverse
effects resulting from exposure to the hazardous chemical.

Training on how employees can
use the label information also includes understanding proper storage of the
material based upon label information, how to quickly locate information on
first aid, and how different pictograms are used to identify various hazards.

The other area of training that
must be completed by December 1, 2013 addresses the new safety data sheet
format. Employees should be trained on the new 16–section format, including
what information can be found in each section and how the information on the
label is related to the safety data sheet.

While additional training will
be required as time goes on with regard to this new standard, the preceding
summary identifies the training that should be completed by December 1, 2013.
Business owners and managers should create a strategy to educate their
employees and ensure their business is compliant with all OSHA standards.