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.

Over the past few weeks, Democrats in Congress have taken a number of additional steps in their ongoing efforts to pressure OSHA to become more aggressive in its enforcement activities. Some recent data suggests that OSHA is responding to this scrutiny. On April 22, 2008, Sen. Edward Kennedy (D-MA), Chairman of the Senate Health, Education, Labor, and Pensions Committee, and Patty Murray (D-WA), Chairwoman of the Subcommittee on Employment and Workplace Safety, asked the U.S. Government Accountability Office (”GAO”) to investigate OSHA’s efforts to ensure that employers accurately report workplace injuries and illnesses. Because OSHA uses this injury and illness information to target employer worksites for inspections, Senators Kennedy and Murray believe that employers have an incentive to underreport the number of injuries and illnesses occurring at their worksites. Senators Kennedy and Murray asked the GAO to review OSHA’s efforts to monitor employers, including the number and types of recordkeeping audits OSHA has conducted.

On April 23, 2008, the House Subcommittee on Workforce Protections held a hearing on “Improving Workplace Safety:  Strengthening OSHA Enforcement of Multi-Site Employers.” During her opening statement, Subcommittee Chairwoman Lynn Woolsey (D-CA) emphasized the importance of improving OSHA’s ability to hold large employers accountable for corporate-wide safety and health problems. 

Rep. Woolsey and the Subcommittee called the hearing as part of their increased attention on OSHA’s enforcement activities after a workplace fatality involving a Cintas Corporation employee who fell from a conveyor belt into an industrial dryer last year. Days after the employee’s death, the Subcommittee sent a letter to OSHA asking for a nationwide investigation of Cintas facilities. OSHA’s investigation resulted in a $2.7 million penalty against Cintas, the largest safety-related penalty ever levied against a service sector employer. Cintas has been locked in a long-running corporate campaign with UNITE/HERE, which has made workplace safety one of the centerpieces of its regulatory and public relations attacks against the company. 

Earlier this week, on April 29, 2008, the Senate Health, Education, Labor, and Pensions Committee held a hearing on “When a Worker is Killed:  Do OSHA Penalties Enhance Workplace Safety?” The hearing focused on the penalties available to OSHA to enforce its regulations, which is one of the issues addressed in the proposed Protecting America’s Workers Act. The Act aims to increase the penalties for violations, enhance protection for whistleblowers, and improve OSHA’s ability to sanction non-compliant businesses. For more details regarding the Protecting America’s Workers Act, please consult a prior Washington Labor & Employment Wire article.

This recent Congressional pressure on OSHA seems to have precipitated more vigorous enforcement efforts against employers. For example, OSHA cited 88,846 violations in 2007, a 5.88% increase from 2006 (83,913 violations). Even more telling is that 67,176 of these violations were classified as serious violations, a 9.52% increase from 2006 (61,337 violations).  OSHA also made more use of its Enhanced Enforcement Program (EEP) in 2007. Cases designated for EEP are typically subject to more vigorous inspections and more expansive settlement obligations. During the first four years of the program (2003-2007), OSHA identified an average of 524 inspections per year that qualified as EEP cases. In 2007, that number jumped almost 40%, as OSHA designated 719 cases for EEP treatment.

On April 30, the U.S. House of Representatives passed the Combustible Dust Explosion and Fire Prevention Act of 2008, which mandates OSHA to issue a rule regarding combustible industrial dusts. 

The bill was introduced on March 4, 2008 in response to an explosion at the Imperial Sugar refinery in Pent Wentworth, Georgia. It requires OSHA to issue a rule to include combustible dusts as part of OSHA’s current Hazard Communication standard in 29 C.F.R. § 1910.1200(c). If enacted into law, OSHA must issue an interim rule within 90 days of the bill’s enactment and a final rule within 18 months of enactment. 

The Bush Administration strongly opposes the bill because, in its view, the 90-day and 18-month requirements do not allow for a thorough regulatory and economic analysis.  Another Bush Administration objection was addressed by an amendment which expanded the time to comply with the interim rule from 30 days to six months. For further information on the White House opposition, see the Statement of Administration Policy.

On April 23, 2008, OSHA announced that it will hold an informal public hearing on the proposed rule for Confined Spaces in Construction. Published on November 28, 2007, the proposed rule increases the protection provided to construction employees working in confined spaces. The comment period for this proposed rule closed on February 28, 2008. For further details regarding the proposed rulemaking and specific requests for comment, please consult our December 17, 2007 post.

The OSHA hearing is scheduled for 10:00 am on July 22, 2008 at the Department of Labor’s Frances Perkins Building in Washington, D.C. Anyone who intends to present testimony at the hearing must notify OSHA in writing by May 21, 2008. In addition, if the testimony will be more than ten minutes, the presenter must provide OSHA with copies of the full testimony by June 20, 2008. 

On February 11, 2008, OSHA issued a directive amending its enforcement policy to address the “Control of Hazardous Energy (Lockout/Tagout)” (LOTO) standard, 29 C.F.R. § 1910.147. This standard “covers the servicing and maintenance of machines and equipment in which the unexpected energization or start up of the machines or equipment, or release of stored energy could cause injury to employees.” The directive provides guidance for OSHA personnel performing inspection activity related to the LOTO standard.

OSHA made the following significant changes in this instruction:

• adds compliance safety officer guidelines that require compliance safety and health officers who are trained in energy control practices and procedures to be the only individuals that can evaluate machines and equipment to determine that they are properly locked and/or tagged out in accordance with §1910.147
• provides examples of citations that may result from various scenarios
• describes three affirmative defenses commonly associated with the LOTO standard: (1) greater hazard to comply with the standard; (2) impossibility defense, which applies if the LOTO standard was functionally impossible or would prevent the performance of the work, and if there are no alternate means of employee protection; and (3) unpreventable employee misconduct
• incorporates compliance assistance flowcharts
• provides additional information on alternatives to the LOTO standard, which include (1) complying with the minor servicing exception, the note contained in §1910.147(a)(2)(ii); (2) utilizing the cord and plug connected equipment or hot tap exemptions, §§1910.147(a)(2)(iii)(A) and (a)(2)(iii)(B); (3) effective machine guarding; (4) final actions granting LOTO standard variances; and (5) other applicable portions of 29 C.F.R. Part 1910 that prevent employee exposure to hazardous energy
• includes additional guidance of the minor servicing exception, specific energy control procedures, periodic inspections and unexpected energization
• adds vehicle repair and maintenance standards and practices to prevent the release of hazardous energy
• includes general reference material for information pertinent to hazardous energy control.

On January 23, 2008, OSHA announced that it has extended the public comment period for the proposed rulemaking for Confined Spaces in Construction by 30 days to February 28, 2008. The proposed rule was published on November 28, 2007 to increase the protection provided to construction employees working in confined spaces. For details regarding the proposed rulemaking and specific requests for comment, please consult a prior Washington Labor & Employment Wire article at the following link http://akingumpinfo.com/ve/ZZ5800R91W92KV87Nj86/VT=0/page=2#osha2.

Comments may be submitted by either: (1) posting the comments electronically through the Federal eRulemaking Portal at http://akingumpinfo.com/ve/d907781WWHW90n59q3/stype=click/OID=407122715214658/VT=0, (2) sending three copies to the OSHA Docket Office, Docket No. 2007-0026, Room N-2625, U.S. Department of Labor, 200 Constitution Avenue, N.W., Washington, D.C. 20210 or (3) faxing the comments to 202-693-1648.