OSHA Delays Silica Rule

On Thursday, April 6, the U.S. Department of Labor's Occupational Safety and Health Administration ("OSHA") announced that it would delay implementation of the new silica safety standards by three months, until September 23, 2017.  According to OSHA's news release, "[t]he agency has determined that additional guidance is necessary due to the unique nature of the requirements in the construction standard."

During the next few weeks, OSHA is expected "to conduct additional outreach and provide educational materials and guidance for employers."

OSHA to Hold Advisory Committee on Construction Safety and Health to Discuss Safety and Health Program Management Guidelines for the Construction Industry

The Occupational Safety and Health Administration (OSHA) will hold a special meeting of the Advisory Committee on Construction Safety and Health to discuss a draft construction version of OSHA’s Safety and Health Program Management Guidelines.  This meeting will be held April 25-26, 2016, in Washington, DC.

This meeting is intended to result in the crafting of a separate set of safety and health program management guidelines for the construction industry.  OSHA provides guidelines and incentive programs for compliance with its safety and health regulations.  Due to the unique challenges faced by members of the construction industry, OSHA's bulletin regarding the upcoming meeting indicated the Advisory Committee intends to provide additional guidance for the construction industry on compliance with industry-specific regulations.

What is in OSHA’s Safety and Health Program Management Guidelines?

Under the Occupational Safety and Health Act of 1970, each employer is required to comply with the occupational safety and health standards and furnish a place of employment free from recognized hazards likely to cause death or serious physical harm to employees.  The Act further allows the Secretary of Labor to establish occupational safety and health standards, rules, regulations, and orders, and requires employers to comply with them.

OSHA's regulations were created to ensure that employers comply with the safety and health standards, and provide safe workplaces for their employees.  Everyone must comply with the Occupational Safety and Health Act of 1970, and in turn, must comply with the Safety and Health Regulations.  The means by which employers comply may differ, as the needs of one employer may not be the same as the needs of another – based on trade, employee count, or other specific characteristics of the business.

The current Safety and Health Regulations for Construction apply to members of the construction industry, and address particular issues within the construction industry.  The regulations establish that no construction contract shall require the performance of work in conditions that are “unsanitary, hazardous, or dangerous” to the health or safety of the worker(s).  Additionally, they establish duties owed to employees, such as personal protective equipment and training, and accident prevention responsibilities such as regular inspections, use of properly working equipment, training on equipment and machinery, and the initiation of programs and policies that comply with these regulations.  The safety and health provisions for the construction industry also include address training and education, reporting of injuries, first aid, fire protection, housekeeping, sanitation, and personal protective equipment.

To assist employers in complying with the required OSHA Safety and Health Regulations, Safety and Health Program Management Guidelines were created. These guidelines are not mandatory, but are voluntary, and really provide guidance to employers as they implement policies and procedures to comply with OSHA Safety and Health Regulations. While it was mentioned above that everyone must comply with the Act and the Safety and Health Regulations, the means by which an employer complies may be different than another employer. Due to this potential difference in compliance, OSHA provides a set of Safety and Health Program Management Guidelines to assist employers in their compliance endeavors.

What exactly is the Advisory Committee on Construction Safety and Health?

The Advisory Committee on Construction Safety and Health is an advisory body established by statute that gives advice and provides assistance in interpreting and complying with construction standards to the Assistant Secretary.  The purpose of this Advisory Committee is to advise the Assistant Secretary for Occupational Safety and Health with setting construction standards and policy matters affecting construction and federally funded construction projects.  Statutes require that OSHA consult with the Advisory Committee before setting or changing construction standards under the Act. 

The upcoming meeting will be important to the construction industry as the guidelines proposed by the Advisory Committee and the OSHA standards apply to the vast majority of the construction industry, including contractors who enter into construction contracts, subcontractors who agree to perform labor or furnish materials for a construction contract; and suppliers who furnish materials for work performed on or near a construction site.  Comments are due by April 15, 2016 at www.regulations.gov for Docket No. OSHA-2016-0009 or by email or facsimile. 

If you have questions about your company’s safety and health policies or would like assistance in developing such policies for your business, please call us at (919) 828-1396.

Congress Gives OSHA The Opportunity to Increase its Fines up to 82%: What Could This Mean for Your Workplace?

November 3, 2015, gave employers a surprise as part of the bipartisan Federal Budget Agreement (“the Agreement”).  The Agreement permitted the Occupational Safety and Health Administration (“OSHA”) to increase its civil penalties for the first time since 1990.  What does this mean for construction industry employers?  The budget deal could mean an increase in OSHA’s civil penalties of up to 82%.

The “Catch-Up” Increase

While this larger increase would be a one-time increase masked as a “catch-up” increase, the repercussions for the construction industry could be large.  The specifics of the increase are to abide by the Consumer Price Index, but the increase is expected to be as large as 82%, assuming OSHA applies the maximum increase allowed.

Sources say that the current maximum $70,000 fine for Repeat and Willful violations could grow to a maximum of $125,438.  Additionally, the maximum $7,000 fine for Serious and Failure-to-Abate violations could reach as high as $12,744 per offense.

This one-time “catch-up” increase is intended to permit OSHA to “catch up” on lost revenues it could have gained had it not been prohibited from increasing.  However, after this initial increase is implemented, OSHA will also be permitted to increase maximum penalties annually based on the rate of inflation for the prior fiscal year.

These changes are set to go into effect by August 1, 2016.  OSHA is required to publish an interim final rule by July 1, 2016.  At that time, OSHA will disclose how much the agency is going to increase its fines based on the leeway it has been given. 

Current OSHA Requirements and Fines

OSHA requires employers to furnish its employees a place of employment that is free from recognized hazards that cause or might cause death or serious physical harm to its employees.  It further requires employers to comply with occupational safety and health standards that are put into effect by the Occupational Safety and Health Act of 1970.

The penalties OSHA is able to give for violations are broken out into multiple types. Serious violations can range in type, but will often result in a civil penalty of up to $7,000 for each serious violation.  Other violations that carry heftier fines include those that are willful or repeat violations, such as when one is convicted of knowingly making false statements, records, or other documents or representations, resulting in a fine of $10,000.  Another willful violation is when an employer willfully violates an OSHA standard as outlined in the Occupational Health and Safety Act resulting in a maximum fine of $10,000.  Repeat violations along these lines can result in a maximum fine of $20,000.

When an employer fails to abate prior violations for which OSHA has required the employer remedy, the employer may face fines of up to $7,000 for each day during which the failure to fix the violation continues.  When an employer has a non-serious violation, including violation of the posting requirements, or a person who gives advance notice of an inspection, can face penalties ranging anywhere from maximums of $1,000 to $7,000 for each violation.

How Will This Affect the Construction Industry?

It is important to note that OSHA fines come from various actions, and a company’s number of accidents likely wont be a sign of whether they’ll be affected by the increase.  Many sources have anticipated that this fine increase is most likely to affect employers who operate in multiple locations, those in the construction industry where safety may not be as prominent, the manufacturing industry, in industries and with employers who have high turnover, and those employers who are not as sophisticated regarding safety issues.

Multi-location employers are at greater risk because the enforcement agency may be able to generalize the violations across the separate locations.  Construction industry employers are at risk because of the types of work involved, and the particular focus among safety inspectors on the construction industry.  Because construction workers often deal with heavy and large equipment, large sites, challenging work spaces, and performance that spans over longer periods of time, the opportunities for OSHA violations are simply multiplied.  The construction industry also suffers like other industries that experience high turnover, because that turnover demands more training for replacement workers.  When training is needed, time may not always seem available, especially if in the middle of an ongoing project.

The manufacturing industry is at risk because, as in the construction industry, the type of work conducted may tend to be more dangerous or hazardous, and extensive training is often necessary.  Employers who lack sophistication regarding safety issues may be small business owners or even larger businesses that put safety regulations on the back burner to get the job done in an efficient manner, or those unaware of the many OSHA requirements and standards for safety in the workplace.

In anticipation of the increasing fine structure, construction companies should take this opportunity to review their safety strategies for avoiding violations.  If their policies and procedures need to be re-worked, this would be the time to do so.  Periodic policy reviews should be a regular occurrence, and not just a one-time thing.  This increase, and Congress’ permission for OSHA to have continued increases in its fines, is just one more form of encouragement for employers to ensure their employees and their workplaces comply with OSHA standards and regulations.

OSHA Issues New Confined Spaces Regulations

On May 4, 2015, the U.S. Department of Labor published its final rules updating the safety standards for construction work in confined spaces.  These rules, which become effective on August 3, 2015, cover requirements for crawl spaces and attics, pits, sewer systems, and other areas.

Under the standards, a "confined space" is defined as having limited means of entry and/or exit, being large enough for a worker to enter it, and not being intended for regular or continuous occupancy.  Some confined spaces -- known as "permit spaces" -- will have additional specific requirements for training and safety measures before workers may be allowed to enter the space.  Permit spaces may have hazardous atmosphere, an engulfment hazard, or other serious hazard such as exposed wiring, that can interfere with a worker's ability to leave the space without assistance.  The new rule requires employers to have a written safety program if any workers will be entering permit spaces.

This new construction standard for confined spaces is more stringent than the existing general industry rule.  According to US DOL, there are five new requirements specific to construction:  (1) more detailed provisions requiring coordinated activities when there are multiple employers at the worksite; (2) requiring a competent person to evaluate the work site and identify confined spaces and permit spaces; (3) requiring continuous atmospheric monitoring whenever possible; (4) requiring continuous monitoring of engulfment hazards; and allowing for suspension of a permit, rather than cancellation, in the event of changes from the entry conditions list on the permit or an unexpected event requiring evacuation of the space.

The full text of the final rule is available, along with a useful FAQs page on the USDOL site.

New OSHA Reporting Rules Go Into Effect

As of January 1, 2015, all employers covered by OSHA are required to report all work-related fatalities within eight hours, and all in-patient hospitalizations, amputations, and losses of an eye within 24 hours of finding out about the incident.  This is a significant increase in the reporting obligations, where previously only fatalities or incidents hospitalizing three or more workers were required to be reported.

Reports may be submitted to the nearest area OSHA office, through the 24-hour OSHA hotline (1-800-321-OSHA), or online as soon as the electronic reporting system is operational in mid-January.

OSHA has posted a more detailed explanation of the updated reporting requirements here, and a factsheet here.  For a shorthand flowchart on the new reporting requirement, OSHA has also prepared this helpful graphic.

If you have any questions about OSHA obligations, please call us at 919-828-1396, or e-mail me.