Author Archives: David Sparkman

What to Expect from OSHA in 2020

Don’t expect the Occupational Safety and Health Administration (OSHA) to slow down as it enters the fifth decade of its existence, following a year of heightened activity in support of its workplace safety mission. An agency of the U.S. Department of Labor (DOL), OSHA spent 2019 increasing its number of employer inspections and pursuing new rulemakings and programs. In fiscal year 2019, It conducted 33,401 inspections—more inspections than the previous three years—addressing violations related to trenching, falls, chemical exposure, silica exposure and other hazards. The enforcement numbers do not include 22 state plans which are responsible for covering both private sector and state and local government workers, and six additional states covering only state and local government workers. Those states rely on their own resources and assistance from federal OSHA to enforce both federal and state worker safety laws, and have not yet released their enforcement statistics for this year. During the same period, OSHA provided a record 1,392,611 workers with training on safety and health requirements through the agency’s various education programs, including the OSHA Training Institute Education Centers, Outreach Training Program and Susan Harwood Training Grant Program. The number of workers that OSHA trained in FY 2019 includes workers from all states, including those with state plans. OSHA also reported that its compliance assistance programs did more this year to help small businesses address safety and health hazards in their workplaces. In FY 2019, OSHA said its free On-Site Consultation Program identified 137,885 workplace hazards and protected 3.2 million workers from potential harm. According to the agency’s recently published agenda for next year, in June it plans to release its proposed rule on occupational exposure to crystalline silica that would allow employers in general industry to meet the same standards as the construction industry. OSHA’s request for information comment period on this topic ended in October. During that period, OSHA received information from the industry on the effectiveness of control measures not included for the tasks and tools listed in the agency’s Table 1, tasks and tools involving exposure to crystalline silica that are not listed in Table 1, and information on dust control methods in limiting exposure to crystalline silica when workers are performing these operations. OSHA also will review this information in consideration of potential revisions to Table 1. Table 1 serves as a compliance option for construction contractors to achieve compliance with key provisions in the standard, explain attorneys Bradford Hammock, Melissa Harclerode and Lauren Bridenbaugh of the Littler Mendelson law firm. In addition, OSHA intends to issue a notice of proposed rulemaking in April 2020 for its walking-working surfaces rule to clarify its requirements for stair rail systems. The agency is seeking to clarify the requirement as the result of feedback it received from employers that the current requirements were unclear. Rulemakings: Cranes, Forklifts, Confined Spaces, Drug Testing OSHA also says it will begin the process of analyzing comments that it received after issuing requests for information regarding potential revisions to its lockout/tagout and powered industrial truck regulations. OSHA is seeking to revise both regulations as evolving technologies have affected each and hopes to bring both of the regulations up to date and in line with current consensus standards. OSHA plans to inaugurate a Small Business Regulatory Enforcement Fairness Act review panel in January that will begin an effort to create a standard designed to address workplace violence in the healthcare and social services industries. This comes after the House of Representatives passed a bill to require OSHA to develop a standard regarding the same issue. OSHA plans to issue a proposed rule in May that would amend parts of the cranes and derricks in construction standard, as well as those that deal with industrial trucks. According to the agency, the proposed amendments will include correcting references to power line voltage for direct current (DC) voltages as well as alternating current (AC) voltages, broadening the exclusion for forklifts carrying loads under the forks from “winch or hook” to a “winch and boom,” and clarifying an exclusion for work activities by articulating cranes. The agenda also includes a proposed rule for updates to the powered industrial trucks standard to incorporate consensus standard provisions having to do with the design and construction of powered industrial trucks. Last November, OSHA started reviewing comments on changes to the current standard, which currently relies upon American National Standards Institute (ANSI) standards dating back to 1969. (For example, the current standard covers 11 types of trucks but there are now 19 types.) At the same time, the agency sought comments on the need for changes to locations of use, maintenance, training and operation of industrial trucks. Other new rulemakings will deal with communication tower safety, welding in construction confined spaces, and occupational exposure to beryllium and beryllium compounds in construction and shipyard sectors., and updates to the Hazard Communication Standard. In addition to the upcoming proposed rules, OSHA has several agenda items that are in the pre-rule stage. These include initiation a Small Business Regulatory Enforcement Fairness Act panel in August for the development of an Emergency Response rule, a request for information slated for July as a preliminary to updating the Mechanical Power Press rule (which hasn’t been updated in 40 years), and the issuance of an advanced notice of proposed rulemaking in September for the Blood Lead Level for Medical Removal rule. In November, OSHA said it plans to propose rules regarding post-incident drug testing and safety incentive programs. That same month it also is expected to issue a proposed rule regarding Personal Protective Equipment in the construction industry. “While the rulemaking process moves at a slow pace, employers should remain informed on OSHA’s anticipated regulatory actions and should consider participating in the rulemaking process to ensure their interests are made known and protected,” advises attorney Trever L. Neuroth of the law firm of Jackson Lewis. The Littler Mendelson attorneys also noted that the agency’s advance agenda is not written in stone. “While some of these initiatives may not materialize into final rules in the near term, employers are encouraged to continue to track these efforts as they might develop into significant requirements at some point in the future.” Let's block ads! (Why?)

What to Expect from OSHA in 2020

California Changes Serious Injury Report Criteria

Lost in the welter of other high-profile employment laws recently enacted by the California State Legislature is a new requirement that changes the criteria for deciding what are serious jobsite occupational injuries, illnesses and deaths of workers that employers need to report to the California Division of Occupational Safety and Health (Cal/OSHA). Another new state law changes the methods by which employers are expected to file reports of these incidents. It eliminates the option for e-mail reporting once the agency opens a new online reporting website that it is currently working on. Even after the new website is up and operating, employers will still have the option of continuing to report via telephone. Both new laws will go into effect on Jan. 1, 2020. One law, called AB 1805, amends the definition of “serious injury or illness” that is contained in state law by removing the 24-hour minimum time requirement for qualifying hospitalizations in cases where an employee suffers loss of a body part or suffers a serious degree of permanent disfigurement. The new law’s definition of these kinds of hospitalizations excludes stays for medical observation or diagnostic testing. By deleting the time frame and simply mandating that reporting must occur when a worker’s injury requires hospitalization, legislators argue that the change will provide employers with added clarity when it comes to determining their reporting responsibilities. Further, the law also replaces “loss of any member of the body” with “amputation,” and explicitly includes the loss of an eye as a qualifying injury. It eliminates the exclusion of an injury or illness caused by certain violations of the Penal Code, and narrows the inclusion of accidents on a public street or highway found to have occurred only in a construction zone. In addition, AB 1805 revises the definition of “serious exposure” to dangerous chemicals. Under the amended law, a “serious exposure” encompasses the exposure of an employee to a hazardous substance in a degree or amount sufficient to create a “realistic possibility”—instead of the current “substantial probability”—that death or serious bodily harm could result from the “actual hazard created by” the exposure. This change is consistent with establishing when a “serious violation” exists. When such a finding is made, it requires a faster response from Cal/OSHA, according to attorneys Matthew Deffebach, Mini Kapoor and Christina Gad of the law firm of Haynes and Boone LLP. The other new law, AB 1804, changes the reporting requirement by directing employers to immediately report such incidents via telephone or through an online reporting mechanism that Cal/OSHA is in the process of creating, but which is not yet operational. Until the online reporting mechanism is available, employers will still be allowed to continue reporting serious accidents by both e-mail and telephone. Employers should keep in mind that violations for failing to timely report a serious injury can result in a minimum fine of $5,000. Legislators explained that the change in the law was prompted by complaints alleging that accident and injury reporting through e-mails has slowed accident investigations because Cal/OSHA may be getting incomplete information when it relies on this reporting method. They noted that during a telephone conversation, Cal/OSHA can ask for follow-up information—something that is not immediately available when using e-mail communications. Also, by creating an online report portal, the legislators said that Cal/OSHA can prompt employers about the type of information that must be provided. “Employers should re-evaluate their reporting procedures in light of these new obligations and monitor the Cal/OSHA website for announcements on when the new online reporting will be available,” Deffebach, Kapoor and Gad recommend. Let's block ads! (Why?)

First Aid for Employees Can Be Complicated

A first aid kit is one of the most common items in American workplaces, but if you don’t learn how to use it right it can cost you dearly. Under the rules promulgated by the Occupation Safety and Health Administration, professional medical treatment for serious injuries must be available for employees within a three- to four-minute response time; in low-hazard settings like offices it can be up to 15 minutes. If medical help is not in this proximity, someone with first aid training must be available during all shifts at your workplace. First aid is defined as medical attention administered immediately after an injury occurs. It usually consists of one-time, short-term treatment and requires minimal technology and training, such as cleaning minor cuts, treating minor burns, applying bandages, and using non-prescription medicine. However, first aid does not include CPR, although many employers offer CPR training, or automated external defibrillators (AEDs), even if you have them on hand because of their life-saving capabilities. If you are located in California, or a state with similar requirements, consult a physician about what to include in the first aid kit and obtain written verification of the consultation. First aid training needs to be tailored to the workplace, stresses attorney Ilana R. Morady of the law firm of Seyfarth Shaw LLP. For example, if your employees work in a warehouse or yard where there are extreme temperatures, training should include how to treat symptoms of heat exhaustion and heat stroke. You also should consider the kinds of injuries that occur in your workplaces when deciding on the contents and quantity of the materials you want to include in a first aid kit. Train Well and Re-Train First aid training for employees and training materials can be obtained from organizations such as the American Red Cross. Training programs also should be periodically reviewed and updated with current first aid techniques and knowledge. The employees who have received the training need to refresh their knowledge on a regular basis. OSHA recommends that employees receive first aid skills and knowledge re-training and updated certification cards every three years. Regardless of the range of topics covered by your first aid training, you need to make sure that it includes documented written and practical tests. OSHA also requires that first aid kits be readily available, which should be easy to ensure in fixed facilities. However, when it comes to truck drivers, Morady recommends that employers also make sure that they have first aid kits on their trucks. Although it is against the law to ask employees about pre-existing or unknown health conditions such as an allergy, epilepsy or a cardiovascular condition, you can ask them if they can’t safely perform a task, she points out. OSHA deems an injury recordable when an employee receives medical treatment that goes beyond first aid, but defining that can be confusing, Morady explains. “If the company nurse gives an employee with an injured knee two Tylenol pills, that’s first aid and the injury is not recordable. But three pills is prescription strength and may be considered medical treatment.” Also defined as medical treatment can be the use of oxygen, numbing or antibacterial eye drops, certain skin creams, rigid versus non-rigid splints, and medical glue to close a cut. Morady says you may be able to inoculate your company from liability by conducting a job hazard analysis of each worksite to determine what type of first aid materials you need at each worksite. Also important is developing written statements that document first aid procedures along with established mandatory employee training and re-training. Don’t forget to make sure the first aid providers’ certifications are up to date. Let's block ads! (Why?)

OSHA Stresses Limits on Computer-Based Training

The Occupational Safety and Health Administration (OSHA) takes employee safety training very seriously, and in support of that commitment the agency recently reinforced its stated policy that online and computer training alone for employees is not adequate to meet federal train requirements. “One of the keys that OSHA emphasizes in all of its efforts is the importance of training,” OSHA Acting Chief Loren Sweatt declared in a recent speech. “Training must be provided to workers who face hazards on the job. It’s the law, and it’s also good for every business. A highly trained workforce can minimize unnecessary costs and disruptions from an illness, injury, or fatality.” In this age of high-tech wonders, with everyone glued to their smart phones and relying on Google the way they once used Encyclopedia Britannica, it’s not surprising that some employers would be tempted to believe that computer training could be enough to meet the agency’s requirements. But it’s just not so, as another OSHA official explained in response to a question posed earlier this year by an employer. OSHA’s interpretation of its requirement that training must “result in mastery of the training material” leads to the conclusion that online training must be supplemented by interactive and physical components, such as putting on and removing personal protective equipment (PPE). OSHA adds that the opportunity for workers to be able to ask questions of, and receive responses from, a qualified trainer in a timely manner is critical to effective training. As a result, it says, online training that does not provide workers with this opportunity would not be in compliance with OSHA’s worker training requirements. “Training with no interaction, or delayed or limited interaction, between the trainer and trainee may halt or negatively affect a trainee’s ability to understand and/or retain the training material,” according to OSHA. “Equally important is the provision of sufficient hands-on training because it allows an employee to interact with equipment and tools in the presence of a qualified trainer, allows the employee to learn or refresh their skills through experience, and allows the trainer to assess whether the trainees have mastered the proper techniques.” OSHA notes that one way for the employer to give workers this opportunity in the context of a computer-based program is by providing a telephone hotline so that workers will have direct access to a qualified trainer during the conduct of the online training. But even that is not considered optimum by the agency in regard to certain kinds of training. For training to be considered adequate, OSHA says a qualified trainer must supplement and facilitate any appropriate hands-on training or demonstration (for example, how to use a tool, perform a task or don appropriate PPE) as necessary for the employee to learn the proper safety and operational techniques, and for the trainer to assess the employee’s mastery of them. Time is of the essence, too. A qualified trainer must be available in a “timely manner” to answer questions during the training. “Training with no interaction, or delayed or limited interaction, between the trainer and trainee may halt or negatively affect a trainee’s ability to understand and/or retain the training material,” OSHA explains. “Online training that does not provide workers with hands-on training would not comply with the agency’s worker training requirements,” the agency stresses. It also emphasizes the importance of employers reviewing specific OSHA standards and related guidance to determine what OSHA requires in specific situations. OSHA’s constituent employers may be forgiven for embracing this misapprehension due to the fact that the agency itself offers dozens of video and other kinds of computer-based training programs for sale on its website. On top of that, many private companies also market DVDs and computer-based OSHA training programs covering almost every major OSHA topic, as well as options for 10- and 30-hour general industry and construction training courses. However, employers should know that there is nothing new contained in this most recent interpretation of training requirements. OSHA issued another one that is almost identical in its wording 25 years ago, note attorneys Timothy Hoover and Jason Markel of the law firm of Hodgson Russ LLP. “Perhaps over the next 25 years advances in virtual reality, interactive holographic imagery or robotic android technologies may afford a viable substitute for the way interactive employee training can be delivered,” they point out. “But for now, the letter of interpretation serves as a reminder to employers that some things still need to be done the old-fashioned way.” Let's block ads! (Why?)

OSHA Adds to Enforcement Weighting System

As of Oct. 1, the Occupational Safety and Health Administration (OSHA) has begun using a new system for weighing and measuring its enforcement priorities that now includes added emphases depending on the type of hazard inspected and whether the actions were taken in pursuit of agency enforcement initiatives. “Because weight will now be given to these areas, employers should be prepared for inspections related to high hazards and specific OSHA enforcement initiatives,” warn attorneys Jayni Lanham, Heidi Knight and Mark Duvall of the law firm of Beveridge & Diamond PC. In its Sept. 27 announcement of the changes, OSHA said that it “will encourage the appropriate allocation of resources to support OSHA’s balanced approach of promoting safe and healthy workplaces, and continue to develop and support a management system that focuses enforcement activities on critical and strategic areas where the agency’s efforts can have the most impact.” Under the new system, OSHA stressed that it will be looking at more than just the time it takes to complete an inspection when evaluating its total enforcement activity for the year, which it measures in what it calls “Enforcement Units.” Years ago, OSHA began measuring its enforcement activity by simply tallying up the total number of inspections completed each fiscal year. That approach changed in 2015 when the agency created its Enforcement Weighting System (EWS) to measure enforcement activity and no longer looked primarily at the total number of inspections. In a 2015 memorandum to regional administrators, then-OSHA chief David Michaels announced implementation of a new system to “underscore the importance of the resource-intensive enforcement activity that is focused on some of the most hazardous workplace issues, such as ergonomics, heat, chemical exposures, workplace violence and process safety management.” To do so, OSHA began measuring inspection activity by assigning varying Enforcement Units (EUs) to different types of inspections and measured its aggregate enforcement efforts by tallying those EUs. The severity and widespread nature of the charges that were brought against employers also were factors. On the low end of the spectrum, non-formal complaint investigations and rapid response investigations would be assigned one-ninth EUs and on the high end of the spectrum, failing process safety management inspections would be assigned seven EUs and actions involving significant cases would be assigned eight EUs. Under the new system adopted for fiscal year 2020, OSHA will continue to weight inspections but will consider factors, divided into five groupings: ● Group A includes criminal cases and significant cases and is assigned the highest number of EUs—seven. ● Group B includes fatalities, catastrophes and process safety management inspections and is assigned five EUs. ● Group C includes programmed inspections involving OSHA’s “focus four” high-priority hazards (such as those involving caught-in, electrical, fall and struck-by hazards) and is assigned three EUs. ● Group D includes programmed inspections under a number of emphasis programs (for example, amputation, combustible dust, workplace violence and heat hazards, Site-Specific Targeting, among others), and is assigned two EUs. ● All other inspections are encompassed by Group E and assigned one EU. OSHA explained that it intends for these weighting system changes to “support a management system that focuses enforcement activities on critical and strategic areas where the agency’s efforts can have the most impact.” “In light of this announcement, employers should expect OSHA’s inspection activity to reflect a renewed emphasis on high-hazard areas and OSHA’s enforcement initiatives,” according to the Beveridge & Diamond lawyers. “Employers should review their plans for preparing for and managing an OSHA inspection or develop a plan if one is not in place.” Pre-planning for an OSHA inspection is a must. Executives responsible for safety management should work closely with key managers and supervisors in their workplaces to make sure everyone knows their role when OSHA inspectors show up at the door. Let's block ads! (Why?)

When Does OSHA Pay Attorneys’ Fees?

It’s no secret that violations of the Occupational Safety and Health Administration (OSHA) regulations can cost an employer big time. In addition to everyday compliance costs, disruption of operations caused by inspections and paying for legal representation, potential penalties can add up quickly if accused of violating agency regulations. As of 2019, other-than-serious violations max out at $13,260, serious violations can cost $13,260, repeat violations $132,598, willful violations $132,598, and failure to abate also can cost an employer up to $13,260 per day. It may surprise you to learn that there are circumstances in which OSHA will actually pay an employer’s attorney’s fees, but only in cases where the employer is found to be in the right and OSHA is in the wrong. Nicholas Hulse and Travis Vance, attorneys with the law firm of Fisher Phillips, explain that in a situation where your company would like to contest a citation that you have good reason to believe was not justified and you are not sure if you can afford to pay an attorney to fight it, there may be relief under federal law. The Equal Access to Justice Act (EAJA) may provide your company with an avenue for having the government foot the bill for your company challenging the citation, they point out. The EAJA allows for the award of attorney’s fees and other expenses to eligible parties in certain administrative proceedings, including those before the Occupational Safety and Health Review Commission (OSHRC), which is charged with hearing appeals of OSHA cases that have been challenged by employers. Under the law, an employer seeking an award must be successful in the adjudication of the case before OSHRC. “Successful” essentially means that the OSHRC found that the agency’s position in the proceeding was not justified. OSHA then has the burden to show that its position was substantially justified or special circumstances make an award unjust. If OSHA can’t meet the burden of persuasion, the commission may award the prevailing party reasonable fees for an attorney and expert witness. However, it’s important to keep in mind that certain rules and restrictions apply before you can even ask for recompense, Hulse and Vance stress. OSHRC has established rules that specifically limit who is eligible for an award of attorney’s fees and other expenses under the EAJA. First, the applicant must be a party with somewhat limited resources. The rules establish that to be eligible for an award, an application for a fees award must be filed whenever a party has prevailed in a proceeding and it must be filed no later than 30 days after the time for filing an appeal has expired. The rules also state that the employer must be a partnership, corporation, association, unit of local government, or public or private organization that has a net worth of not more than $7 million and that it employs not more than 500 employees. The net worth and number of employees of an applicant are determined as of the date the notice of contest was filed. Also keep in mind that the hourly rate for attorney’s fees under the EAJA for OSHRC matters is currently capped at $125 per hour. But that can add up quickly. Awards have been granted and upheld in federal courts. Two years ago, a federal appeals court ruled that OSHA must pay more than $51,000 in attorneys’ fees to the Agricultural Retailers Association, which had won a ruling over disputed agency guidance for fertilizer facilities. “If OSHA issues your company a citation without substantial justification, consider the EAJA when deciding whether to contest the citation,” Hulse and Vance urge. “The government may be left footing the bill if they were not substantially justified in issuing a citation to your company.” Let's block ads! (Why?)

MSHA Seeks More Info on Silica Black Lung

The Mine Safety and Health Administration (MSHA) has started a proceeding to formally gather additional information on silica-based black lung disease in a move that union leaders say simply allows the agency to further delay taking necessary enforcement action that it should have taken long before now. MSHA issued a Request for Information (RFI) and has scheduled a public meeting on the issue for Oct. 17. in Washington, DC, seeking to gather “information and data on feasible best practices” to protect miners from quartz crystals in respirable dust generated during the process of mining coal, including potential new or developing protective technologies, and any other technical and educational assistance that could prove helpful. In what is perhaps the most important development revealed in the RFI, MSHA announced that it also is engaging in an “examination of an appropriately reduced permissible exposure limit”—which the agency’s critics, including union leaders, have long sought. In recent years it has slowly become evident that a plague of a new, more destructive form of black lung disease is afflicting the nation’s coal miners at a time when the belief was widespread that black lung arising from breathing coal dust had been virtually eliminated. The newer form strikes more quickly and devastates miners’ lungs earlier because the disease they suffer from is in reality a form of silicosis, caused by respirable crystalline silica being mixed in with the purer coal dust that created the original black lung epidemic. The tiny particles of silica have been found to do tremendous damage to lungs, resulting in inevitable decline into debility and death. In addition to lung disease, exposure to silica is believed to contribute to chronic obstructive pulmonary disease. The new black lung arose after many of the seams of pure coal ran out and operators began mining thinner seams running through rock, primarily sandstone. The mining process involved grinding up rock along with the coal, spreading clouds of fine silica dust everywhere, which eventually led to this new form of black lung called progressive massive fibrosis (PMF). But MSHA is not the first government regulator that has confronted the health threats to workers arising from exposure to crystalline silica dust. The Occupational Safety and Health Administration (OSHA), which like MSHA is an agency of the Department of Labor, began taking action in 2011 with development of a rule adopted in early 2016 to stem the exposures of workers in industries like construction and manufacturing to respirable crystalline silica dust. In the wake of OSHA having taken direct action, MSHA has been seen as dragging its feet while it awaits the results of additional research. In 2017 the OSHA-imposed silica rule went into effect, first for the construction industry and then for other non-mining employers. That rule also established a new, lower Permissible Exposure Limit (PEL) for workers significantly lowering the silica level that workers may be exposed to and imposed several new requirements on employers. OSHA’s current PEL for silica is 50 micrograms per cubic meter of air averaged during an eight-hour shift, and is half of MSHA’s current PEL of 100 micrograms, which was most recently updated in 1985 The rules developed by OSHA also include stringent air quality testing and monitoring standards as well as monitoring and performing regular health assessments of workers who are exposed to silica dust. OSHA hasn’t been shy about pursuing enforcement efforts either, fining employers with millions of dollars in penalties for silica rules violation. Contrasts in Enforcement OSHA also recently announced plans for a new national emphasis program to deal with breathable silica dust exposure expected to launch in 2020. Respiratory protection violations place smack in the middle of both of OSHA’s Top 10 Lists for “serious” and “willful” violations for 2018. This August, the DOL Inspector General issued a report finding that MSHA’s civil monetary penalties program has proven to be ineffective when it came to improving safety and may not provide enough of a financial disincentive for mine operators to avoid future violations. Last November, the Inspector General declared in his annual report that the mine safety agency should take additional actions to ensure mine operators comply with its Respirable Coal Dust rule. These include reviewing the quality of coal mine dust controls in mine ventilation and dust control plans; analyzing sampling data quarterly; and monitoring operator sampling equipment. The Inspector General also stressed that MSHA needs to re-evaluate its Respirable Coal Dust rule in light of new information, along with increasing testing and enforcement for other airborne contaminants. At a congressional hearing held last June, MSHA chief David Zatezalo first revealed that the RFI would focus on personal protective equipment (PPE) such as respirators and helmets, pointing out that OSHA’s silica rule permits employers to comply with its silica standards by deploying the appropriate PPE, but MSHA’s rule doesn’t allow that. At the same hearing, United Mine Workers of America president Cecil Roberts explained that in many circumstances it is physically difficult to the point of impossibility for miners to wear this kind of respiratory equipment for long periods. In fact, MSHA itself has cautioned that respirators are not comfortable for many miners and as a result their use is diminished, especially over an extended amount of time. Under its existing coal mining standards, miners are not required to wear respirators and mine operators cannot rely on respirators as a substitute for engineering and environmental controls. “The primary means of controlling respirable dust are still engineering or environmental controls,” points out Jason M. Nutzman, a partner with the law firm of Dinsmore & Shohl LLP. “Moreover, respiratory protection should not replace these controls but instead should be provided to miners until controls are implemented that are capable of maintaining respirable dust levels in compliance with the standards. UMWA’s Roberts was joined at the hearing by Leo Gerard, president of United Steelworkers (who has since retired). In addition to offering their testimony, the two union leaders told Zatezalo in a letter dated the same day as the hearing that MSHA’s silica standards were “in desperate need of revision.” Both of them also urged MSHA to adopt the OSHA silica standard. “All miners need this standard, surface and underground, no matter what they’re mining,” Gerard asserted. “This Administration says they love miners. Let’s see if they mean it.” Let's block ads! (Why?)

OSHA Okays New Respiratory Fit Testing Protocols

The Occupational Safety and Health Administration (OSHA) on Sept. 25 issued a final rule approving two additional quantitative fit testing protocols for inclusion in its Respiratory Protection Standard. Effective on Sept. 26, the day after they were issued, these new protocols represent an addition to Appendix A of the Respiratory Protection Standard. They are: ● The modified ambient aerosol condensation nuclei counter (CNC) quantitative fit testing protocol for full-facepiece and half-mask elastomeric respirators. ● The modified ambient aerosol CNC quantitative fit testing protocol for filtering facepiece respirators. Both protocols are variations of the original OSHA-approved CNC protocol, but have fewer test exercises, shorter exercise duration and a more streamlined sampling sequence, according to attorney Megan E. Baroni of the law firm of Robinson & Cole LLP. The protocols apply to employers in general industry, shipyard employment and the construction industry. “OSHA’s goal in approving these protocols is to provide employers with additional procedures to protect the safety and health of employees who use respirators against hazardous airborne substances in their workplace,” Baroni points out. OSHA concludes that the new rule will end up saving employers considerable money in the long run. While the information necessary for employers to document and maintain on the fit test record remains the same, the time it takes to obtain it is reduced because the additional PortaCount protocols will take an employer less time to administer, the agency says. As a result, OSHA estimates that the total burden hours decrease for employers will be 201,640 hours, down from 7,622,100 to 7,420,460 hours. Additional savings could result from the more efficient protocols established under the final rule, the agency states. OSHA also argues that the new protocols could result in a cost savings of more than $4 million per year to regulated entities. Both protocols are abbreviated variations of the original OSHA approved ambient aerosol CNC quantitative fit testing protocol (often referred to as the PortaCount protocol), but differ from the test by the exercise sets, exercise duration and sampling sequence. These protocols will serve as alternatives to the four existing quantitative fit testing protocols already listed in Appendix A of the Respiratory Protection Standard. OSHA says that it found that these protocols “will maintain safety and health protections for workers while providing additional flexibility and reducing compliance burdens.” The original ambient aerosol CNC protocol uses a sample device installed on the respirator to quantitatively test the respirator’s fit. The probed respirator is used only for the fit test. The PortaCount protocol employs a series of eight test exercises, performed in the following order: normal breathing, deep breathing, turning head side to side, moving head up and down, talking, grimacing, bending over and then normal breathing again. The new quantitative fit testing (QNFT) protocols will provide employers additional options to fit test their employees for respirator use, Baroni explains. OSHA issued the rule with the expectation that it will increase employers’ flexibility in choosing fit testing methods for employees. Baroni notes that the new rule does not require an employer to update or replace its current fit testing methods if those fit testing methods that are currently in use meet existing standards. In addition, states with OSHA-approved state plans are not obligated to adopt the additional fit testing protocols. Nevertheless, the agency is strongly encouraging them to adopt the final provisions to provide additional compliance options to employers in their states. In this regard, OSHA concludes that the new fit testing protocols provide employers in the State Plan states with procedures that protect the safety and health of employees who use respirators against hazardous airborne substances in their workplace at least as well as the quantitative fit testing protocols in Appendix A of the standard. Let's block ads! (Why?)

Employers Must Measure Respiratory Threat

In a decision published Sept. 11, the U.S. Court of Appeals for the Ninth Circuit ruled that the Occupational Safety and Health Administration (OSHA) Respiratory Protection Standard requires that employers adequately evaluate all appropriate respiratory hazards before determining if a respirator is required as well as to select an appropriate respirator. The case began in 2009 when workers’ complaints drew OSHA inspectors to the marine vessel repair facilities operated in Seward, Alaska, by Seward Ship's Drydock Inc., which at that time performed both drydock and dockside repairs and maintenance on ships and barges. The company was in the process of performing welding within a ship’s voids (empty compartments designed to contribute to the vessel’s buoyancy). Respirators had been offered to the welders on a voluntary basis, but only one had chosen to do so. The site superintendent, who also was the designated “shipyard competent person” and held a marine chemist certificate, conducted atmospheric testing where work would take place. Before welding began, he tested the voids using a “grab sample,” which provides an immediate measurement from a gas meter. The tests determined whether gas levels in the voids were “safe for entry” at the time the test was performed. However, he did not test for the metals found in welding fumes. The welding fumes present contained iron oxide, manganese, fluorides and barium compounds. Overexposure to them can cause respiratory difficulties, and overexposure to iron oxide can cause siderosis, commonly known as “iron lung.” Two of the welders later testified that the air quality in the voids was very poor and described it as smoky. They filed complaints with OSHA and compliance officers later found there was improper ventilation and visible fumes. They took grab samples to test for carbon monoxide and attached personal exposure monitoring devices to two welders. The inspectors then issued citations for 13 violations for failing to adequately test the atmosphere in the voids, exposing employees to inhalation hazards. They determined that the testing conducted by Seward did not address permissible exposure limits (PELs) for several chemicals. Ten Years of Appeals Seward challenged the finding and a federal administrative law judge (ALJ) agreed with the company, holding that the site superintendent’s grab sample which tested only for gases was adequate to protect the safety of the welders. OSHA appealed to the Occupational Safety and Health Review Commission (OSHRC), which after conducting briefings from the parties involved, chose to uphold the ALJ’s decision against the agency. OSHA then appealed that decision to the federal appeals court, which reversed OSHRC and found that OSHA’s interpretation of the law and its own regulations was correct. The court concluded that OSHA’s Respiratory Protection Standard requires employers to evaluate potentially harmful atmospheres to determine whether respirators are required and in selecting the appropriate respirator, rather than performing this evaluation after a determination has been made that respirators are necessary. In reaching its decision, the court looked to the overall purpose of the Respiratory Protection Standard and concluded the standard was not ambiguous. It said the ALJ and OSHRC had given excessive weight to the fact that the provision requiring the employer to identify and evaluate the respiratory hazards in the workplace was in the section of the standard titled “Selection of Respirators.” In other words, the court reversed the commission’s position that evaluation of respiratory hazards was required only after a determination had been made that respirators were necessary and upheld OSHA’s argument that an evaluation of respiratory hazards was required to determine whether a respirator was necessary and then to select the appropriate respirator. In light of this opinion, employers should re-evaluate their procedures for determining when it is reasonable to suspect that an employee may be exposed to harmful concentrations of airborne contaminants, says attorney Lawrence P. Halprin of the law firm of Keller and Heckman. This also should be the case when evaluating potential exposures based on anticipated workplace conditions and reasonably foreseeable emergencies (such as ventilation failure). “This opinion suggests the possibility that OSHA may attempt to make greater use of the Respiratory Protection Standard rather than the General Duty Clause to address allegedly harmful airborne contamination that is not addressed by a PEL or is below a current PEL,” Halprin warns. Let's block ads! (Why?)