6/18/2009

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SGA Safety & Health Regulatory Update

June 3, 2009

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SGA Regulatory Update

Department of Labor Related Activities Department of Labor Related Activities– OSHA– Occupational Safety and Health Review Commission– OSHA Semiannual Regulatory Agenda (Pre-rule, Proposed and Final

Rule Stages) – OSHA Assistance (Fact Sheets and Quick Cards)

Proposed Legislation – Congressp g g– Protecting America’s Workers Act– Protecting Workers from Imminent Dangers Act of 2009– Corporate Injury, Illness and Fatality Reporting Act

ASSE & NFPA Standards Department of Transportation

– Agriculture and Utility Hours of Service Exemptions

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g y p– Motor Carrier – Return to Work Urine Samples

Multi-employer Information

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OSHA

Hilda Solis, Secretary of Labor, Memo to Cabinet Secretaries– Stressed importance of protecting worker safety and health as

new construction project begin under the American Recovery and Reinvestment Act of 2009. (ARRA)( )

– May increase inspections of federal worksites, so safeguard both federal workers and contractors.

– Encouraged government departments to take advantage of OSHA training opportunities.

– ARRA became law February 17, 2009 and includes spending

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y , p gplans for construction of roads, bridges, public transportation, etc.

– The Cabinet?

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The Cabinet?

Th C bi t i l d th Vi P id t Att G lThe Cabinet includes the Vice President, Attorney General and the Secretaries of these executive departments:

– Agriculture - Housing & Urban Development

– Commerce - InteriorCommerce Interior

– Defense - Labor

– Education - State

– Energy - Transportation

– Health & Human Services - Treasury

Homeland Security Veteran Affairs

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– Homeland Security - Veteran Affairs

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OSHA

J d B b d D t A i t t S t Jordan Barab was named Deputy Assistant Secretary and Acting Assistant Secretary by Secretary Solis effective April 13, 2009.

Barab has been the House Education and Labor Committee senior advisor for over two years, y ,specializing in worker health and safety issue.

Barab was a special assistant to the assistant director of Labor for OSHA for three years and worked with the U.S. Chemical Safety and Hazard Investigation Board.

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Occupational Safety & Health Review Commission (OSHRC)

Thomasina Rogers was named Chairman of the OSHRC Thomasina Rogers was named Chairman of the OSHRC on May 13, 2009.– Has been on the Review Commission since 1998 and is the first

woman to be designated as Chairman.– Stated her goal is to ensure the most intelligent use of resources

in resolving safety and health disputes that come before g y pOSHRC, which includes enhanced transparency.

• This prompted the Review Commission, for the first time, to post on its website copies of administrative law judge decision that are under review.

• There are 18 ALJ decisions currently pending Commission review and can be seen at: http://www.oshrc.gov/.

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• An ALJ reviews contested citations or penalties and issues a decision. Past practice was to not post ALJ decisions until the employer’s rights were exhausted which took years in some cases.

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OSHA Semiannual Regulatory AgendaPrerule Stage

OSHA l t f f th f ll iOSHA plans to focus on some of the following:

Occupational Exposure to Crystalline Silica – June 2009, initiate peer review of health effects & risk

assessment.

– A standard being considered to provide for exposure monitoring, medical surveillance and employee training.

– New PELs for respirable crystalline silica being considered.

Occupational Exposure to Beryllium– December 2009, initiate peer review of health effects and risk

assessment.

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assessment.

– OSHA solicited information and conducted field surveys in January 2008.

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OSHA Semiannual Regulatory AgendaPrerule Stage - 2

C b tibl D t Combustible Dust– Stakeholder meetings, December 2009.

– OSHA considering rulemaking for a combustible dust standard for General Industry.

Occupational Exposure to Hexavalent Chromium, Final Rule Remand.– September 2009, respond to remand.

– OSHA published a final rule in February 2006 and was subsequently sued on portions of the rulemaking.

– OSHA is considering how to respond to U.S. Court of Appeals

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OS s co s de g o to espo d to U S Cou t o ppea srequest for an explanation on its decision to require notification only where employee exposure exceeds the PEL.

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OSHA Semiannual Regulatory AgendaProposed Rule Stage

The following regulations will be the primary focus:The following regulations will be the primary focus:

Confined Spaces in Construction– October 2009, analyze comments since publishing the proposed rule.

– The rule extends confined-space protection to construction workers appropriate to the construction industry.

Electric Power Transmission & Distribution Electrical; Personal Electric Power Transmission & Distribution, Electrical; Personal Protective Equipment– September 2009, comment period ends.

– The construction of electrical power transmission and distribution lines standards are over 35 years old, OSHA has developed revisions and intends to amend the corresponding standard for general industry as

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well.

– OSHA reopened the record to gather additional information on minimum approach distances.

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OSHA Semiannual Regulatory AgendaProposed Rule Stage - 2

Cranes and Derricks in Construction Cranes and Derricks in Construction– June 2009, close record.– In 2003, a rulemaking committee was established and held its

first meeting.– July 2004, the committee reached consensus on all issues

resulting in a final consensus document.g– A proposed rule was issued in 2008.

Other proposed rules include:– Walking Working Surfaces and Personal Fall Protection Systems

(Slips, Trips and Fall Prevention)– Updating OSHA Standards Based on National Consensus

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p gStandards.

– Hazard Communication

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OSHA Semiannual Regulatory AgendaFinal Rule Stage

OSHA l ti th t i t th fi l l t i l dOSHA regulation that is at the final rule stage includes:

Abbreviated Bitrix Qualitative Fit-Testing Protocol– July 2009, final action.

– OSHA is considering adding a new fit testing protocol that modifies the existing Bitrix protocol, and whether to amend the fit testing provisions of the standard to include the proposed protocol.

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OSHA Assistance

OSHA Fact Sheets OSHA Fact Sheets– Respiratory Infection Control: Respirators Versus Surgical Masks

– What Employers Can Do to Protect Workers from Pandemic influenza

– Healthcare Workplaces Classified as Very High or High Exposure Risk for Pandemic Influenza – What to do to protect workers.

OSHA Quick CardsOSHA Quick Cards– Protect Yourself – Pandemic Flu – Respiratory Protection

• Who needs to wear a respirator?

• A surgical mask is not a respirator.

• Basic requirements of a respiratory protection program.– Medical Evaluation - Fit Testing

Training Written program

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– Training - Written program

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Proposed LegislationProtecting America’s Workers Act – April 2009

D t i t d d thi bill (H R 2067) hi h Democrats reintroduced this bill (H.R.2067) which – expands OSHA’s jurisdiction to public employees, including

federal, state and local government workers;

– increases penalties for repeated and willful safety and health violations including making felony charges available when the employer’s repeated and willful violation results in a worker’semployer s repeated and willful violation results in a worker s death or serious injury;

– protects Whistleblowers for reporting unsafe conditions; and

– gives workers and their families the right to challenge reductions of fines and other penalties.

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Proposed LegislationProtecting America’s Workers Act – April 2009 - 2

Penalty changes:Penalty changes: Willful and repeat citations

– Minimum changes from $5,000 to $8,000– Maximum changes from $70,000 to $120,000

Serious, failure to abate and other-than serious citations & Posting Violations– Increase from $7,000 to $12,000

Violations causing death, civil penalties– Range from $50,000 to $250,000– $25,000 minimum for companies with 25 or less employees– CRIMINAL penalties for death, including fines and up to 10 years in

prison for owners and managers.

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prison for owners and managers.– Criminal penalties for serious bodily injury could include 5 years prison.

Bill increases OSHA fines every four years for inflation.

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Proposed LegislationProtecting Workers from Imminent Dangers Act

I 2005 B f L b St ti ti t d th In 2005, Bureau of Labor Statistics reported there were– 5,072 industrial fatalities

– 4.2 million injuries and illnesses

Congressman Tim Bishop (NY) introduced new legislation, “Protecting Workers from Imminent Dangers g , g gAct of 2009”. (May 2009) Grants OSHA the power to shut down a place of employment that puts workers in imminent danger.

The “Protecting Workers from Imminent Dangers Act” ill t th H C itt Ed ti d

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will move to the House Committee on Education and Labor for consideration.

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Proposed LegislationCorporate Injury, Illness and Fatality Reporting Act

C Phil H (D IL) i t d d th C t Congressman Phil Hare (D-IL) introduced the Corporate Injury, Illness and Fatality Reporting Act.

Requires companies with more than one location and 500 or more employees to accurately report the numbers and rates of work-related deaths, injuries and illnesses at , jtheir worksites. (Currently companies do not report injuries unless three or more employees are hospitalized for a work-related incident.)

These companies would also provide compliance data di OSHA i ti d it ti th t d

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regarding OSHA inspections and citations that occurred at any or all of their sites.

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ASSE Standard

S it ti f C t ti d D liti O tiSanitation for Construction and Demolition Operations (BSR/ASSE/A10.25-200x)

Standard currently being developed.

Covers potable water, toilet and hand washing facilities located on a jobsitelocated on a jobsite.

Applies to all construction sites where more than four individuals are employed for more than one (1) week.

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NFPA Tank & Container Standard

NFPA St d d f th S f di f T k dNFPA Standard for the Safeguarding of Tanks and Containers for Entry, Cleaning or Repair (BSR/NFPA 326-200x) is under revision.– Standard applies to the safeguarding of tanks or containers,

operating at nominal atmospheric pressure, that contain or have t i d fl bl d b tibl li id th h dcontained flammable and combustible liquids or other hazardous

substances and related vapors or residues.

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Department of TransportationAgriculture and Utility HOS Exemptions – April 2009

Study by DOT’s Volpe National Transportation Systems Center Study by DOT s Volpe National Transportation Systems Center found agricultural carriers operating exclusively within a 100 mile radius had a 10% higher crash rate than carriers operating outside a 100-mile radius during the 2005-2007 period.

Study also showed that utility service motor carrier crashes jumped 40% during the same period.

Conclusion: hours-of-service exemptions are largely responsible for th i d t (C i l V hi l S f t Alli CVSA)the increased rates. (Commercial Vehicle Safety Alliance - CVSA)

CVSA proposing all motor carrier safety exemptions be sunsetted on a future date and they be reapplied by the process in Section 31315 of U.S. Code, Title 49 which is administered by Federal Motor Carrier Administration (FMCSA).

For a safety exemption to be granted, group seeking exemption must demonstrate to Secretary of Transportation “such exemption

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must demonstrate to Secretary of Transportation, such exemption would likely achieve a level of safety that is equivalent to, or greater than, the level that would be achieved absent such exemption.”

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Department of TransportationMotor Carrier – Return to Work Urine Samples

U S Court of Appeals for the D C Circuit ruled the DOT can require U.S. Court of Appeals for the D.C. Circuit ruled the DOT can requiredirect observation of all return-to-duty and follow-up tests for commercial drivers and other transportation workers. (May 2009)

Rule requires drivers who have already violated the drug testing rules once before and are undergoing RTD or FU tests to be observed while providing urine samples.R i l t i hi t d l t th b Requires employee to raise shirts and lower pants so the observer can check for adulterants or prosthetics used to beat the tests.

Several transportation unions took DOT arguing the June 25, 2008 violated the prohibition on “arbitrary and capricious agency action” and the Fourth Amendment’s protection against unreasonable searches. The court agreed with DOT on both issues.

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DOT has not announced when it will implement its planned changes to 49 CFR 40.67(b) in light of the court’s decision.

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Multi-Employer Citation PolicyJune 2003

Summit Contractors Inc was constructing a dormitory Summit Contractors Inc was constructing a dormitory and contracted All Phase Construction to perform masonry work. All Phase failed to properly protect its employees working on scaffolds from fall hazards.

None of the Summit employees was exposed and Summit did not create the hazardSummit did not create the hazard.

The compliance officer found, however, that All Phase’s fall protection violations were in plain view of the Summit job trailer and Summit had knowledge of the hazards. Therefore Summit, as the controlling employer, received the same violations as All Phase for the fall protection

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the same violations as All Phase for the fall protection violations.

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Multi-Employer Citation Policy2003-2004

All Ph did t t t th i l ti S it did All Phase did not contest the violations, Summit did.

Summit argued :– The controlling employer concept from the Multi-Employer

citation policy was not enforceable and

– The multi-employer policy was not valid because it was contrary to the language of 29 CFR 1910.12(a). That standard states, in part: “Each employer shall protect the employment of each of his employees engaged in construction work by complying with the appropriate standards prescribed in the paragraph.”

The Administrative Law Judge upheld the citation.

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Multi-Employer Citation Policy2004 & 2007

Th OSHRC d th ALJ d i i (2004) d h ld The OSHRC reversed the ALJ decision (2004) and held that 1910.12(a) requires each employer to protect only its own employees.

Therefore since Summit had no employees exposed to the hazard and it did not create the hazard, Section ,1910.12(a) precluded OSHA from citing Summit for the hazard created by the subcontractor, All Phase.

The Department of Labor filed a petition for review of the OSHRC decision regarding the multi-employer citation

li (2007)

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policy. (2007)

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Multi-Employer Citation PolicyFebruary 26, 2009

Th OSHRC d i i d d t d b th The OSHRC decision was reversed and vacated by the United States Circuit Court of Appeals for the Eighth Circuit. (February 26, 2009) Secretary of Labor v. Summit Contractors, 2009 W.L. 465978 (C.A.8).

The decision only addressed the meaning of 29CFR y g1910.12(a) (his employees) and did not evaluate the overall policy. The decision suggested OSHA might need to conduct rulemaking on the policy as a predicate to its continued use in enforcement.

It i t d th t thi d i i ill b l d t th

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It is expected that this decision will be appealed to the United States Supreme Court by Summit Contractors.

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Multi-Employer Citation PolicyFuture OSHA Activities

N th t th lti l it ti li h b Now that the multi-employer citation policy has been reversed, there will likely be an increase of multi-employer citations even though the Eighth Circuit decision will likely be appealed to the United States Supreme Court.

Exposure may be able to be minimized by requiring strict compliance by contractors on all OSHA policies.

Ensure contractors and their employees clearly understand your company will not tolerate violations of

d OSHA t d d

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company and OSHA standards.

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Multi-Employer Citation Policy –May 2009

St t d!!Stay tuned!!

Questions or comments?

Thank you.

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