OSHA recently released an August 26, 2008 interpretation letter regarding its “Recording Occupational Injuries and Illnesses” part 1904.  The standards in this part help employers determine which injuries and illness they should record and report to OSHA.  The interpretation letter considers whether injuries to employees are considered “recordable” and how they should be recorded under this part when confronted with the following four scenarios:

1.   If an employee’s surgery requires her to work at home instead of the office while she recovers, is the employer required to record it as “days away from work” under § 1904.7 even if the employee is able to perform all routine job functions?

§ 1904.7(b)(3) and (b)(4) require employers to record an injury or illness that either involves one or more days away from work or involves restricted work or a job transfer. In particular, §1904.7(b)(4)(i) states that “restricted work” occurs when an employer keeps “the employee from performing one or more of the routine functions of his or her job, or from working the full workday that he or she would otherwise have been scheduled to work.” OSHA concluded that if the employee does not work from home as part of her normal work schedule, the employer must record the case as days away from work. If, however, the employee’s normal work schedule did include working from home at least one day a week, the employer must record the case as restricted work because the employee did not work the full 8-hour day.

2.  If an employee parks his car in the company parking lot and injures himself by inadvertently slamming the car door on his finger, is this injury considered work-related under § 1904.5(b)(2)(vii)?

Under § 1904.5(b)(2)(vii), an injury or illness “caused by a motor vehicle accident and occurs on a company parking lot or company access road while the employee is commuting to or from work” is not a “work-related” injury that is recordable.  OSHA clarified that three factors must exist for an injury or illness to qualify for this exception: (1) it must occur during an employee’s commute; (2) it must occur in the employer’s parking lot or access road; and (3) it must result from a motor vehicle accident.  OSHA concluded that, because the injury did not involve a motor vehicle accident during the employee’s commute, the third requirement for § 1904.5(b)(2)(vii) does not exist.  Therefore, the employer must record this accident on its establishment log.

3.  If an employee suffers a knee injury because of a work-related fall on March 15, is diagnosed with a contusion, retires from her job for reasons wholly unrelated to the injury on April 15, continues to have pain from the March 15 fall, and has surgery to treat this pain on July 15, is this injury recordable? If so, how should the injury be recorded?

Under § 1904.7(b)(1), employers must record a work-related injury or illness if it results in death, days away from work, restricted work or transfer to significant injury or illness by a physician or other licensed health care professional.  Because the employee received the injury while employed and met the § 1904.7(b)(1) criteria when the employee received medical treatment in July, the employer must record the injury.

4.  If an employee who is on restricted work activity for a work-related injury is terminated because of that injury, should additional hours be added to the OSHA Form 300 when calculating the “total hours worked by all employees” so the number of hours can correspond to the number of restricted work activity days or days away from work that are estimated and added to the Form 300?

OSHA concluded that employers should not add additional hours to the total hours worked figure because neither OSHA nor the Bureau of Labor Statistics calculates its rates based on the number of days.  Instead, they calculate rates based on the number of cases.

On October 6 and 7, 2008, OSHA will hold a public hearing to receive comments on its new proposed rule designed to clarify that noncompliance with the personal protective equipment and training requirements in the general industry, construction, and maritime standards will expose employers to liability and penalties on a per-employee basis.  The hearing will be held in the Frances Perkins Building, U.S. Department of Labor, 200 Constitution Avenue, N.W. Conference Room 6, Room C-5320, Washington, D.C. 20210.  The hearing will commence at 10:00 a.m. on October 6, 2008 and, if necessary, will continue on October 7, 2008 at 9:00 a.m.

If a party is interested in providing testimony during the hearing, it must notify OSHA in writing no later than September 26, 2008.  OSHA has also asked for each party’s testimony to be no more than 10 minutes.  If a party needs more than 10 minutes, it must submit a written request with its notice of intention stating: (1) how much time it seeks, (2) the topics it will cover, and (3) why it cannot cover these topics in 10 minutes.  The notice of intention to appear at the hearing may be submitted in three ways: 1) post the comments electronically through the Federal eRulemaking Portal at http://www.regulations.gov/, 2) send three copies to the OSHA Docket Office, Docket No. OSHA-2008-0031, Technical Data Center, Room N-2625, U.S. Department of Labor, 200 Constitution Avenue, N.W., Washington, D.C., 20210, or 3) if less than 10 pages, fax the comments to 202-693-1648.  Each submission must include the Agency name and Docket Number for this rulemaking: OSHA-2008-0031.

On September 17, 2008, the House Education and Labor Subcommittee on Workforce Protections held a hearing entitled “Secret Rule: Impact of the Department of Labor’s Work Health Risk Assessment Proposal.”  The hearing examined a proposal from the Department of Labor’s Office of Policy to change and codify the risk assessment process, by which agencies evaluate if exposure to a toxic material poses a significant risk.  Agency decisions about whether to regulate a toxic material take into account risk assessments, as well as whether proposed regulations are technologically and economically feasible. 

This proposed rule has been referred to as the “secret rule” because it was not included in the Department of Labor’s semiannual regulatory agenda, was not originally published in the Federal Register, and the documents or advice that formed the basis of the proposed rule have not been disclosed.

Leon Sequeira, Assistant U.S. Labor Secretary for Policy, testified that the proposed rule merely codifies existing risk assessment best practices into a single easy-to-reference regulation.  The proposed rule would institute two new requirements: (1) agencies developing a health standard regulating occupational exposure to a toxic substance or hazardous chemical would be required to issue an Advanced Notice of Proposed Rulemaking (ANPRM) soliciting input including scientific studies and data, and (2) agencies would be required to post online documents relied upon in developing the risk assessment no later than fourteen days after the conclusion of the relevant rulemaking step that utilized those documents.

Randel Johnson, Vice President of the U.S. Chamber of Commerce, also spoke favorably about the proposed rule.  Johnson pointed out that because courts give risk assessments of federal agencies significant deference, it is important that the initial risk assessment is accurate.  Johnson stated that requiring an ANPRM would not necessarily slow down the regulatory process, but it would allow agencies to gather all relevant data and perfect the risk assessment as early as possible in the process.

Dr. Celeste Monforton of The George Washington University School of Public Health and Margaret “Peg” Seminario, Director of Occupational Health and Safety at AFL-CIO, both testified against the proposed rule.  Monforton characterized the current procedures for issuing occupational health-protective rules as “paralyzed,” and argued that the proposed rule would make it even more difficult and time-consuming to issue such protections.  Seminario argued that the current administration has consistently refused to set any new occupational health standards, but is now rushing to lock in place these new procedures to make it more difficult for the next administration to protect workers from known health risks. Seminario also pointed out that the proposed procedures would apply to rules currently in the regulatory process, none of which have had ANPRMs, but which would now be required.  Seminario also emphasized that even though the proposed rule would require the online publication of documents relied upon in formulating rules, the Department of Labor has yet to publish any of the documents it relied upon in formulating the so-called “secret rule.”

Subcommittee Chair Woolsey (D-CA), Rep. Payne (D-NJ), and Rep. Hare (D-IL) all asked the panel questions indicating their disapproval of the proposed rule.  In her concluding remarks, Chairwoman Woolsey announced her continued commitment to protecting the health of American workers by making sure that “any ill-conceived proposal will not see the light of day - particularly this one.”

OSHA recently released a July 14, 2008 interpretation letter regarding its “Determination of work-relatedness” standard, 29 C.F.R. § 1904.5. The interpretation letter considers whether injuries to employees on an employer’s parking lot are considered “work-related” injuries under § 1904.5(b)(2)(vii).

This standard helps employers determine which injuries and illnesses they should record and report to OSHA. In particular, § 1904.5(a) requires an employer to “consider an injury or illness to be work-related if an event or exposure in the work environment either caused or contributed to the resulting condition or significantly aggravated a pre-existing injury or illness.” In addition, § 1904.5(b)(2) provides a list of injuries or illness occurring in the workplace not considered “work-related,” thus not recordable.

Under § 1904.5(b)(2)(vii), an injury or illness “caused by a motor vehicle accident and occurs on a company parking lot or company access road while the employee is commuting to or from work” is not a “work-related” injury that is recordable.

In its interpretation letter, OSHA clarified that three factors must exist for an injury or illness to qualify for this exception:  (1) it must occur during an employee’s commute; (2) it must occur in the employer’s parking lot or access road; and (3) it must result from a motor vehicle accident. OSHA concluded that because the injuries did not involve a motor vehicle accident, the third requirement for § 1904.5(b)(2)(vii) does not exist. Therefore, employers must record these accidents on their establishment logs.

On August 29, 2008, the DOL’s Office of the Assistant Secretary for Policy issued a notice of proposed rulemaking (NPRM) that changes the methods used to measure workplace exposure to toxic substances and hazardous chemicals. Under this proposed rule, agencies must seek out and receive all relevant data before proposing a health standard. 

In particular, the proposed rule makes two significant changes to the existing regulations:

• When developing a health standard regulating occupational exposure to a toxic substance or hazardous chemical, agencies must issue an Advance Notice of Proposed Rulemaking (ANPRM) soliciting input on studies, scientific information, data describing the frequency, intensity and duration of exposure of workers in affected industries and occupations, key default factors and assumptions, and other relevant information.
• Agencies must post electronically all documents relevant to a rulemaking addressing occupational exposure to toxic substances and hazardous chemicals no later than fourteen days after the conclusion of the relevant rulemaking step that relied upon or utilized those documents. The rulemaking steps include, but are not limited to, publishing an ANPRM, concluding the Small Business Regulatory Fairness Act (SBREFA) process, publishing of the NPRM, concluding any public hearing, and publishing a final rule.

The Office for the Assistant Secretary for Policy has also asked for public comments in connection with this proposed rule. The comment period will remain open until September 29, 2008. Comments may be submitted in two ways:  1) post the comments electronically through the Federal eRulemaking Portal at http://www.regulations.gov/ or 2) mail or hand deliver to the Office of the Assistant Secretary for Policy, 200 Constitution Ave., NW, S-2312, N.W., Washington, D.C., 20210, Attention: Risk Assessment Policy. 

On August 19, 2008, OSHA published a proposed rule designed to clarify that noncompliance with the personal protective equipment and training requirements in the general industry, construction, and maritime standards will expose employers to liability and penalties on a per-employee basis. Currently, an employer may receive one penalty for failure to train or provide personal protective equipment for multiple employees. Under this proposed rule, an employer could receive a separate penalty for each employee. The proposed rule, however, does not add any new compliance obligations for employers with respect to providing new equipment or training programs. It simply changes the liability risk for any failure to comply with existing regulations.In particular, the proposed rule makes two significant changes to the existing regulations.

• Introduces an identical new section in Parts 1910, 1915, 1917, 1918, and 1926, “Compliance duties owed to each employee” (§§1910.9 ,1915.9, 1917.9, 1918.9, and 1926.20(f)), clarifying that employers have separate compliance duties for each employee with respect to personal protective and training requirements.
• Revises training provisions in the general industry, construction, and maritime standards that require employers to institute or provide a training program for “all employees” to require employers to train “each employee.”

OSHA has also asked for public comments in connection with this proposed standard. The comment period will remain open until September 18, 2008. Comments may be submitted in three ways:  1) post the comments electronically through the Federal eRulemaking Portal at http://www.regulations.gov/, 2) send three copies to the OSHA Docket Office, Room N-2625, U.S. Department of Labor, 200 Constitution Avenue, N.W., Washington, D.C., 20210, or 3) fax the comments to 202-693-1648. Comments must include the Agency name and Docket Number for this rulemaking:  OSHA-2008-0031.

As part of its continuing efforts to increase its pressure on OSHA, the House Committee on Education and Labor held a hearing on June 24, 2008 to examine whether the OSHA is adequately enforcing construction safety rules. The Committee focused on the recent high-profile crane accidents in New York City and Las Vegas. While OSHA Assistant Secretary Edwin Foulke highlighted OSHA’s current initiatives to improve workplace safety, other witnesses expressed concern over deficiencies in the Administration’s resources, personnel, and enforcement measures. The hearing also explored the role local officials and employers have in making construction sites safer for employees.

Secretary Foulke testified regarding OSHA’s efforts to ensure that the nation’s construction workers are provided safe work environments. To address the four most common causes of occupational fatalities in the construction industry - falls, “struck bys,” “crushed bys,” and electrocutions - OSHA has implemented various programs that focus on enforcement, training, and collaboration with employers, organizations,  and state officials. Foulke maintained that increases in the number of citations, penalties, and criminal referrals, along with an 18% decline in the construction fatality rate since 2001, were indications that OSHA’s approach is working. Committee members, however, questioned the validity of this assessment, pointing out that higher numbers were not necessarily signs of enhanced rule enforcement. Chairman George Miller (D-CA) noted that without more supporting evidence, it was difficult to decipher whether the statistics truly represented improvements in workplace safety.

Foulke also fielded inquiries about OSHA’s crane and derricks standard, which has not been updated since 1971. Rep. Lynn C. Woolsey (D-CA) mentioned that OSHA began working on improving the rule in 2003, but has yet to issue its proposed revision. When asked by Chairman Miller and Rep. Timothy Bishop (D-NY) about the delay, Foulke responded that although the negotiated rulemaking process was completed in 2004, OSHA’s proposal has subsequently had to navigate a complicated set of analyses and reviews. He indicated, however, that the Administration is in the final stages of developing the proposed rule.

The hearing also included testimony from Robert LiMandri, acting Building Commissioner of New York City, and Mike Kallmeyer, Senior Vice President for Construction at Denier Electric, who spoke about measures undertaken to advance construction safety, and George Cole and Mark H. Ayers, who testified about fatalities on construction sites.

LiMandri testified that the New York City Buildings Department has adopted a seven-pronged approach to address safety issues, which includes: (1) nearly doubling the size of the agency and focusing more resources on construction safety; (2) seeking new and improved regulatory oversight and enforcement tools; (3) creating a new enforcement program to curtail problems; (4) supporting criminal prosecution of bad actors and repeat offenders; (5) conducting top-to-bottom reviews of high-risk construction areas; (6) holding all parties accountable; and (7) focusing on education for workers and requiring site safety managers. While crediting OSHA for its key role in his department’s efforts, LiMandri lamented that OSHA’s lack of resources prevented further progress and called on Congress to increase support for OSHA.

Kallmeyer testified regarding the policies his own company has adopted to encourage workplace safety. Denier employees are required to undergo standard OSHA training and complete all recognized safety courses for their field of employment.  In addition, Denier performs daily “frequent regular inspections” for each construction jobsite and conducts incident investigations for all accidents and near-misses. An employee incentive program rewards workers who maintain good safety records, exceed training requirements, and volunteer to serve on the company safety committee. Kallmeyer claimed that the most effective action for the government is to promote its educational partnerships with the construction industry so that more employers would have the resources to improve safety in the workplace.

Cole, a retired ironworker, testified regarding his brother-in-law Harold “Rusty” Billingsley, who fell 59 feet to his death last October at a Las Vegas construction site. Cole attributed Billingsley’s death to an OSHA compliance directive that he claimed violated the safety regulations contained in the Steel Erection Standard Final Rule, OSHA Subpart R. Intended to limit the fall distance to ironworkers as well as to provide protection from falling objects to workers on the ground, the standard requires a decked floor or nets for every two stories or 30 feet, whichever is less, under any erection work being performed. Cole stated that by issuing a compliance directive that allowed employers to circumvent this requirement, OSHA was intentionally failing to enforce its own safety standards. Cole also testified that though Billingsley’s employer was initially fined $13,500 for the preventable accident, all citations and fines were withdrawn following a private meeting between the company and Nevada’s OSHA.

According to Ayers, President of the AFL-CIO’s Building and Construction Trades Department, jobsite deaths of construction workers like Mr. Billingsley are unfortunately all too common. Ayers testified that, on average, four workers are killed every day on U.S. construction sites, or a total of over 1,400 workers each year.  This number is ten times the number of firefighters or law enforcement officers and over twenty times the number of miners killed on the job each year. According to Ayers, though comprising only 8% of the American workforce, construction workers account for 22% of all work-related deaths. Ayers urged the implementation of five major actions: (1) issuance by OSHA of a temporary emergency standard requiring basic ten-hour training for all workers; (2) promulgation by OSHA of a crane safety standard; (3) increased enforcement activities by OSHA; (4) creation of a dedicated Construction Occupational Safety and Health Administration; and (5) increased funding for the National Institute of Occupational Safety and Health to conduct construction safety and health research.

The Committee and witnesses also discussed whether OSHA has the necessary resources to effectively promote its safety standards. Commissioner LiMandri, Rep. Woolsey, and Chairman Miller all noted OSHA’s lack of authority to intervene quickly against unsafe workplaces. For example, while New York City is able to issue stop-work orders at a moment’s notice, OSHA’s enforcement arsenal is usually limited to imposing fines, which are typically low and assessed long after violations occur. Chairman Miller worried that even when fines are issued, they are often waived as in the case of Mr. Billingsley, thereby undermining enforcement efforts and resulting in unfairness to employees. Chairman Miller strongly urged OSHA to consider enforcement actions beyond fines, looking to examples set by programs such as New York City’s for alternative solutions.

On May 21, 2008, OSHA announced its Site-Specific Targeting (‘SST”) program for 2008. The SST program is part of OSHA’s programmed inspection plan for non-construction workplaces with 40 or more employees. OSHA implements a new SST program every year.

This year’s SST program adopts the same provisions as last year’s program, but with the following significant changes:

• OSHA increased the number of establishments it will randomly select and inspect from 100 last year to approximately 175 this year. OSHA will select establishments from industries that have a DART rate (days away from work, restricted work activity, or job transfer for every 100 full-time employees) and DAFWII rate (days away from work injury and illness) above the national average;
• The threshold DAFWII rate to qualify for the Secondary List of programmed inspections will change from between 4.0 and 9.0 to between 5.0 and 9.0. The DART rate to qualify for the Secondary list will remain at between 7.0 and 11.0. The threshold rates to qualify for the Primary List will remain at a DART rate at or above 11.0, or a DAFWII rate at or above 9.0;
• OSHA now requires each area office to use a web-based application to create SST inspection cycles and to update the inspection lists; and
• To obtain a 90-calendar day deferral, an establishment must request an initial full-service comprehensive consultation visit for safety and health. In 2007, an establishment only had to request a consultation for safety or health.

On May 5, 2008, OSHA published its agenda for regulations it has selected to review or develop over the next twelve months. OSHA has four regulatory items in the pre-rule stage and three in the proposed rule stage. While OSHA has published a schedule for these items, the published dates are tentative and subject to change.

Regulations in Pre-Rule Stage

In May 2008, OSHA will initiate a Small Business Regulatory Business Fairness Act (”SBRFA”) panel to discuss occupational exposure to diacetyl, a major component in artificial butter. On September 25, 2007, OSHA denied a petition by the United Food and Commercial Workers International Union and the International Brotherhood of Teamsters for an Emergency Temporary Standard for employees exposed to diacetyl. This SBRFA panel is an initial step to develop a proposed rule for controlling occupational exposure to diacetyl.  

By August 2008, OSHA plans to complete a peer review of the occupational exposure standard to crystalline silica as part of the process for developing a proposed standard for crystalline silica. This review will include an analysis of the possible health effects resulting from such exposure and the economic impact that recommended protective measures will have on employers. OSHA has already implemented a National Emphasis Program for occupational exposure standard. For details regarding the National Emphasis Program, please consult a prior Washington Labor & Employment Wire article.

By November 2008, OSHA expects to complete a peer review of occupational exposure to beryllium. In 2002, OSHA solicited information pertaining to exposure to beryllium, including the possible adverse health effects, exposure assessment and monitoring methods, and medical surveillance. OSHA plans to use this information to develop a proposed rule addressing occupational exposure to beryllium.

By November 2008, OSHA will complete a Section 610 (of the Regulatory Flexibility Act) review of its current Methylene Chloride Standard, 29 C.F.R. 1910.1052. This review will consider the need for standard; whether it overlaps, duplicates, or conflicts with other regulations; and the degree to which technology, economic conditions, or others factors have changed since the rule was last evaluated. 

Regulations in Proposed Rule Stage

In June 2008, OSHA will reopen the record on its Electrical Protective Equipment proposed rule to obtain additional information on minimum approach distances. OSHA published the proposed rule on June 15, 2005 and held a public hearing from March 6-14, 2006.  

In August 2008, OSHA will issue a proposed rule governing safe work procedures for work on cranes and derricks. OSHA will base the proposed rule on the consensus reached by the Cranes and Derricks Negotiated Rulemaking Committee in July 2004.  

In September 2008, OSHA will hold a public hearing on its Confined Spaces in Construction proposed rule. The comment period for the proposed rule ended on February 28, 2008. For details regarding the proposed rulemaking and the specific requests for comment, please consult April 29, 2008 and December 17, 2007 Washington Labor & Employment Wire articles.

 For a review of the entire DOL regulatory agenda, including OSHA, please consult the OSHA website.

Congressional Democrats continue to pressure OSHA to enhance its enforcement activities.  On April 29, 2008, the Majority Staff of the Senate Health, Education, Labor, and Pensions (”HELP”) Committee published a report, “Discounting Death:  OSHA’s Failure to Punish Safety Violations that Kill Workers.”

The Committee made the following findings in its report:

• Current enforcement tools OSHA has at its disposal - a maximum prison sentence of six months and a maximum civil penalty of $70,000 - are inadequate when compared to other regulations. In particular, the maximum prison sentence is lower than the sentence for mail fraud, improperly hunting migratory or wild birds, dealing in counterfeit obligations, operating certain criminal financial enterprises, and piracy. The maximum penalty is lower than civil penalties under the South Pacific Tuna Act, the Fluid Milk Promotion Act, and the Clean Air Act.
• OSHA conducts lenient enforcement efforts. In particular, OSHA reduces the initial penalty imposed on employers by almost 40%, lowers the classification of citations more than 20% of the time, and rarely seeks criminal prosecution on the worst offenders.
• OSHA has not collected $27.5 million in assessed penalties in fatality cases, or almost one half of such penalties.

OSHA has conducted follow-up inspections on only 514 of the 2,007 employers or establishments (25.6%) targeted in the Enhanced Enforcement Program. For more details regarding OSHA’s revised Enhanced Enforcement Program, please consult a prior Washington Labor & Employment Wire article.

For more details regarding Democrats’ other recent efforts, please consult a recent Washington Labor & Employment Wire post.