AHEAD OF THE GAME
Employer Information Alerts

What's happened?

Final silica dust rule released.

Published March 25, the lengthy final rule, the first update of the regulation since 1971, is aimed at limiting worker exposure to respirable crystalline silica. Major provisions include:

• Reduces the permissible exposure limit for crystalline silica to 50 micrograms per cubic meter of air, averaged over an eight-hour shift. The new PEL is half the previous limit for general industry and 5 times lower for construction.
• Requires employers to use engineering controls (such as water or ventilation) and work practices to limit worker exposure; provide respiratory protection when controls are not able to limit exposures to the permissible level; limit access to high exposure areas; train workers; and provide medical exams to highly exposed workers.
• Includes a table of specified controls construction employers, large and small, can follow to be in compliance, without having to monitor exposures.
• Staggers compliance dates to ensure employers have sufficient time to meet the requirements, e.g., extra time for the hydraulic fracturing (fracking) industry to install new engineering controls and for all general industry employers to offer medical surveillance to some exposed employees.

What employers should do. While political action has delayed a new rule for decades and there are signs of pushback from Republican Congressional members, it is unlikely this rule will go away. Even if there is adverse congressional action, there is plenty of time for the President to veto it. Therefore, employers should begin to understand the final rule that is written as two standards, one for construction and one for general industry and maritime. Employers covered by the construction standard have until June 23, 2017 to comply with most requirements. Employers covered by the general industry and maritime standard have until June 23, 2018 to comply with most requirements; additional time is provided to offer medical exams to some workers and for hydraulic fracturing employers to install dust controls to meet the new exposure limit.

Final deadline for HazCom and GHS approaching.

June 1, 2016, is the final deadline in the 4-year phase-in period for the 2012 revisions to the hazard communication standard that aligned with the Globally Harmonized System for the Classification and Labeling of Chemicals (GHS).Unless an extension is granted, all employers must be fully compliant with GHS adoption by June 1. This means completing any necessary updates to hazard communication programs, including workplace-labeling procedures, and training all affected employees on any new hazards identified during the manufacturers', distributors', or importers' chemical reclassification process.

In addition, in February 2016 a new draft document outlined how employers can use an approach known as "weight of evidence" to assist in classifying hazardous chemicals. This guidance educates chemical manufacturers and importers about expectations on how to prepare accurate Safety Data Sheets and labels required to protect worker safety and health.

What employers should do. Chemical manufacturers and importers should review the "weight of evidence" document, even those that met the June 1, 2015 deadline to produce safety data sheets and labels using the GHS format. This guidance is open for comments until 5/2/2016.

End users should:

• Review chemical inventory lists and verify that you have received the most current SDS from suppliers
• Compare new SDSs to older MSDSs to look for newly identified hazards that will require additional employee training
• Review in-house labeling systems for compliance and be sure that workers are trained to use and understand the labels

Severe injury reporting numbers fall short of expectations.

Employers reported more than 10,000 severe injuries in the first year of the revised reporting rule that went into effect on Jan. 1, 2015. The rule maintained a requirement that all workplace fatalities be reported within eight hours, but broadened a requirement to report all in-patient hospitalizations, amputations, and losses of an eye within 24-hours of finding out about the incident. The number fell far short of expectations and OSHA believes many severe injuries, perhaps as high as 50%, were not reported. Large employers, particularly in the construction and manufacturing industries filed the majority of first-year reports.

What employers should expect. While more education and outreach is planned, employers should expect to see an increase in citations for nonreporting this year. The penalty for not reporting a severe injury was raised to as much as $7,000 from $1,000, with fines expected to increase further when higher penalty levels approved by Congress last year take effect in August. In addition, employers should expect a shifting of priorities to event-triggered inspections and those workplaces with whistleblower complaints pending, those in SVEP, and those involving temporary workers or health issues.

Public shaming and enforcement of severe violators ramped up.

In March, Thomas Galassi, OSHA's director of enforcement programs, provided a Severe Violator Enforcement Program (SVEP) update:

• More than 60% of cases involve construction industry employers
• About 16% of the construction industry involve employee fatalities
• About 7% are classified as egregious
• Employers contest about 17% of cases
• Small employers make up the majority, with about 75% having 100 or fewer employees and roughly 55% having 25 or fewer employees

When OSHA puts an employer in the SVEP, it issues a press release before employers can contest the citation(s). This can have an impact on recruiting employees, obtaining bids and permits, and be devastating for a company's reputation.

What employers should do. Recognize the gravity of being placed in the SVEP and do everything possible to avoid it. Once designated as a severe violator, there is no clear-cut method for getting out of the program and no employer has been released from it since the program began in June 2010.

Criminal prosecutions on the rise.

Since the creation of OSHA 32 years ago, there have been few criminal prosecutions. Federal prosecutors were unwilling to take on cases because the maximum penalty companies face for a "willful violation" is a misdemeanor. That changed in December 2015, when the Department of Labor (DOL) and Department of Justice (DOJ) entered into a Memorandum of Understanding (MOU) encouraging the "creative" prosecution of workplace violations under EPA laws (with felony provisions) and 18 USC statutes (obstruction of justice, conspiracy, false statements, witness tampering) to impose sentences that could reach 20+ years.

What employers should do. This alerts employers that criminal penalties will accompany violations of workplace safety laws, and that the DOJ enforces other laws in conjunction with these violations. DOJ/DOL MOU prosecutions will target those making the decisions that lead to deaths of others including corporate officers, managers and supervisors in the field. Employers should review their OSHA, MSHA, and other safety and health compliance and training policies and programs and all internal investigation procedures to minimize the risk of violations, and should consult with counsel when concerns are identified.

New inspection focus and higher penalties.

In October 2015, OSHA introduced a new metric for counting inspections: Enforcement Units. This replaced the old system of total number of inspections conducted that penalized managers who ordered more complex inspections. In addition, the debt reduction bill provision that increases OSHA penalties by 80+% takes effect 8/1/2016.

What employers should expect. Inspectors are expected to make greater use of the General Duty Clause, assess higher penalties and focus on those areas that are given the most weight under the new system:

• Top weighting to "significant cases" ($100K+) - 8 pts
• Process Safety Management inspections - 7 pts
• Ergonomics inspections - 5 pts
• Heat hazard inspections - 4 pts
• "Exposure to substance not regulated," workplace violence, and fatality/catastrophic event inspections - 3 pts
• Combustible Dust inspections, those requiring personal sampling, and federal agency inspections - 2 pts
• Informal Complaint (hospital or medical referral) - 1/9 pts
• Rapid Response Investigation follow-up - 1/9 pts

Rules governing whistleblowers have changed.

In January 2016, OSHA updated its guidance in a way that could make it more difficult to have employees' whistleblower discrimination cases dismissed. Under the revised guidelines, the investigation of a worker's complaint can be found to have merit if an initial investigation finds "reasonable cause" that a violation of the worker's rights occurred, rather than the previous higher evidentiary standard of a "preponderance of the evidence" (the evidence for a conclusion must outweigh the evidence against it).

What employers should do. Take the whistleblower seriously:

• When an employee raises a safety concern, diligently investigate and document
• Never force anyone to work with equipment or in areas that he/she believes is unsafe
• Never fire, demote or discipline workers for expressing safety concerns or cooperating with OSHA/MSHA during investigations, or for filing safety complaints with federal or state agencies. (Adverse action includes termination, suspension, demotion, written warnings, change of shift or position, bad references)

Heads up: What to watch

Electronic recordkeeping. While the final rule on electronic recordkeeping missed the March 2016 target release from the OMB, it is very much alive. The proposal would require employers with 250+ workers to file electronic reports of all injuries and illnesses quarterly, and smaller employers to file annually. The electronic data would be publicly available and searchable by employer name.

Chemical safety. The Process Safety Management (PSM) standard will be updated soon (SBREFA starting this month). EPA's concurrent effort to amend its Risk Management Program requirements is further along and the rule was sent to OMB.