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OSHA Update- July 2017: Regulatory Updates, Continued Enforcement and a Recent OSHRC Decision

July Safety Initiatives to Consider

A number of national and regional safety initiatives took place throughout June. Of course, employers need not wait for large-scale, focused safety campaigns to take measures to reinforce their safety programs and culture. Having a workforce that puts safety first is the best way to protect your employees and your company.

As we move deeper into the summer months, employers face various seasonal safety challenges. For many employers, managing the risk of heat illness is the foremost concern. As we reported last month, employers whose employees are potentially exposed to hot temperatures must protect their employees from hazards related to extreme heat exposure. The heat illness prevention campaign, which the Occupational Safety and Health Administration summarizes with the reminder “WATER. REST. SHADE.”, provides a number of resources on effectively protecting employees from heat illness.

As we also discussed last month, employers must continue to ensure all summer workers receive proper training on required job duties and understand the importance of safety. OSHA has published some resources for employers to use to ensure that all employees stay safe.

Secretary of Labor Update

As we continue to wait for the current administration to nominate an assistant secretary of labor for OSHA, Deputy Assistant Secretary Dorothy Daugherty retired from her post June 30. Another longtime member of the agency, Tom Galassi, currently serves as acting deputy assistant secretary. Galassi is well qualified to helm the agency. He joined OSHA in 1986 and most recently served the agency as director of Enforcement Programs.

Despite the lack of an assistant secretary for OSHA, Secretary Acosta has begun steering OSHA in a direction more hospitable to employers. Secretary Acosta’s influence is discussed in more detail in the Enforcement and Cooperation section.

Regulatory Updates

Beryllium Rule Proposal
 

On June 27, OSHA issued a proposed rule that would revise the beryllium rule proposal for the construction and shipyard industries. OSHA proposed the new rule because ““[r]epresentatives of the shipyards and construction industries, as well as members of Congress, raised concerns that they had not had a meaningful opportunity to comment on the application of the rule to their industries when the rule was developed in 2015-16.” The proposed rule would revoke several of the ancillary provisions of the construction and shipyard beryllium rule, including exposure monitoring, regulated areas (and competent person in construction), a written exposure control plan, protective equipment and work clothing, hygiene areas and practices, housekeeping, medical surveillance, medical removal, and worker training. 82 Fed. Reg. 29,182-83 (June 27, 2017).

The proposed rule would retain the permissible exposure limit of 0.2 µg/m3 and the short term exposure limit of 2.0 µg/m3 for both sectors. Id. OSHA is considering extending the compliance dates in the January 9 final rule by a year for the construction and shipyard industries to give these employers additional time to comply with its requirements. Id. OSHA also announced it will not enforce the January 9 final shipyard and construction standards while this rulemaking is underway. Id. Comments on the proposed rule are due by August 28. Instructions for commenting are in the federal register announcement.

The proposed rule does not make changes to the beryllium rule for general industry. This rule remains in effect and the compliance date remains March 12, 2018.

Crane Operator Certification Delayed
 

On June 20, OSHA’s Advisory Committee on Construction Safety and Health voted to approve OSHA’s proposed one-year extension for OSHA’s crane operator certification requirement

Electronic Recordkeeping Rule Delay; Petition for Review Placed on Hold

The comment period on OSHA’s proposed delay of the July 1 electronic reporting deadline remains open until July 13. Under the proposal, covered employers would have until December 1 to electronically submit to OSHA’s data collection system the information from the 2017 Form 300A Summary of Work-Related Injuries and Illnesses. OSHA expects to have the data collection system ready by August 1.

OSHA’s stated reason for the delay is “to provide employers the same four-month window to electronically submit their 2016 Form 300A data” and “to provide the new administration the opportunity to review the new electronic reporting requirements prior to their implementation.” Fed. Reg. 82 FR 29,261. OSHA may also be considering whether it has the resources to handle the deluge of data it would receive under the rule. In 2015, after OSHA revised its injury and illness reporting standard, many area offices were inundated with injury reports. 

Because OSHA is contemplating “whether to reconsider, revise or remove portions of the rule,” the agency has requested a stay of one of the industry challenges to the rule. Order, Texo ABC/AGC, Inc., et al. v. Occupational Safety and Health Admin., No. 3:16-cv-01998-L, (N.D. Tex. June 30, 2017). Rather than stay the matter indefinitely, Judge Lindsay administratively closed the proceedings. Should OSHA ultimately opt to move forward with its implementation of the rule, it is likely industry groups or Judge Lindsay will reopen the case. See id.

OSHA has taken a rather contradictory position in the other pending challenge to the rule. OSHA opposed requests of various unions and public health groups to intervene in the matter because the agency’s goal is identical to that of the would-be intervenors – both want the rule to stand. In denying the requests to intervene, Judge Russell stated, “[t]he Court is persuaded, at least for now, the Government is adequately representing the interests of the Unions and Public Health Advocates.” Order, Natl’l Assoc. of Home Builders of the United States, et al, v. Acosta, No. CIV-17-009-R, (W.D. Okla. June 26, 2017). The denial is without prejudice. If OSHA opts to revise or remove portions of the rule, “the Unions and Public Health Advocates may renew their requests to intervene.” Id.

Additional information on the rule and these challenges can be found in our alerts from May 18 and June 27.

Continued Enforcement and Cooperation

OSHA and its state counterparts continue to actively pursue significant citations against employers. Amsted Rail Company was placed in the Severe Violator Enforcement Program after receiving citations with proposed penalties of more than $600,000. So far in 2017, 375 citations have been issued, with proposed penalties exceeding $40,000. In contrast, during the first six months of 2016, only 221 citations were issued, with proposed penalties exceeding $40,000. The increase in the number of significant enforcement cases is likely due, at least in part, to the penalty increases that took effect last August.

Secretary Acosta’s emphasis on a more cooperative approach to compliance is, however, evident. OSHA recently announced the agency “will hold a stakeholder meeting July 17, 2017, in Washington, D.C., to discuss the future direction of the agency’s Voluntary Protection Programs (VPP).” The topics OSHA intends to cover focus on strengthening VPP and increasing participation in the program.

As the new administration begins to change the direction of the agency, employers will likely have increased opportunities to work with OSHA on enhanced safety programs. At the same time, significant enforcement will continue. Employers must continue to strengthen and enforce their safety and health programs and culture to protect their employees and their business.

Review Commission- Employer Knowledge

In a May 3 decision that became a final order last month, Administrative Law Judge Sharon Calhoun vacated a citation alleging a violation of OSHA’s electrical standards because the employer did not have actual or constructive knowledge of the alleged violative conditions.

Sec’y of Labor v. Solares Elec. Servs., Inc., OSHRC Docket No. 16-0605 (May 3, 2017). The employer, Solares Electrical Services, Inc. (Solares), was updating the energy monitoring and control system at a hospital in Miami. The foreperson and one employee were in an electrical room unrolling and measuring wire when the foreperson stepped away to make a telephone call. While the foreperson was away, the employee began working on energized equipment. In the process, a fire alarm was triggered. The employee exited the room and called the foreperson. The foreperson explicitly told the employee not to do anything and to wait for him to return. The employee did not follow this instruction and instead went back into the electrical room alone. When he entered the electrical room, an arc flash occurred, burning the employee on his face and ears.

Following an OSHA inspection, OSHA issued a three-item citation. OSHA alleged in one of the citation items Solares violated 29 C.F.R. § 1910.335(a)(1)(i), which provides “[e]mployees working in areas where there are potential electrical hazards shall be provided with, and shall use, electrical protective equipment that is appropriate for the specific parts of the body to be protected and for the work to be performed.” Judge Calhoun found the cited condition applied, there was noncompliance with its terms, and employees had access to the violative condition, but Judge Calhoun ultimately vacated the citation item because Solares did not have actual or constructive knowledge of the violative condition. In evaluating whether Solares had constructive knowledge of the alleged violation, Judge Calhoun specifically noted Solares had a policy requiring employees to use PPE and its employees were trained in hazards relating to electrical work.

This decision highlights the importance of maintaining a well-enforced, adequate safety program and providing employees with proper training. Given OSHA can use any accepted citation item, including an Other-Than-Serious citation, as a basis for a Repeat classification for up to five years and Repeat citations now carry a potential penalty of $126,749, employers should carefully evaluate the factual and legal merit of any citation before accepting it.

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About this Author

Daniel Flynn, Dinsmore Law Firm, Environmental and Safety and Health Attorney
Partner

Dan, a member of the Environmental Practice Group, focuses much of his practice on environmental, health and safety issues.

He has represented companies across general industry and construction with matters involving the Occupational Safety and Health Administration (OSHA), ensuring local and national clients minimize liability from OSHA enforcement actions by counseling clients on proper compliance with all OSHA standards and on proper inspection management techniques. If citations are issued, he helps clients develop and evaluate settlement...

312-837-4305
Anna Skinner, Dinsmore Law Firm, Environmental and Litigation Attorney
Associate

Anna Claire is a member of our Litigation Department where she focuses her practice on environmental law. Her experience includes assisting clients on environmental issues in the context of business transactions and compliance counseling. Anna Claire has extensive experience with Clean Air Act enforcement and compliance issues and has helped clients against environmental enforcement initiatives directed at electric utilities. She also has experience in many aspects of discovery and trial preparation, including factual investigation, drafting motions, and witness preparation.

859-425-1065