Environmental Alert: 2016 OSHA Year in ReviewEnvironmental Alert December 27, 2016
In 2016, there were several noteworthy OSHA-related developments, including issuance of final rules setting forth new compliance obligations, previously issued rules with compliance deadlines that came into effect this year, as well as updated guidance. This post provides a year-end overview of these developments.
As a reminder, employers should periodically review and revise company policies and procedures to ensure compliance with new OSHA compliance obligations and consult, where necessary, with counsel to ensure that needed revisions are made in order to avoid potentially costly enforcement actions (OSHA can now assess penalties of up to $12,471 for violations and up to $124,709 for willful or repeated violations).
HAZARD COMMUNICATION STANDARD
OSHA issued a final rule in 2012 aligning the Hazard Communication Standard with the Globally Harmonized System of Classification and Labeling of Chemicals. Major changes to the Hazard Communication Standard included establishing criteria for classification of health and physical hazards; changing the format for labels to include a signal word, a pictogram, a hazard statement for each hazard class and category, and a precautionary statement; eliminating use of the Material Safety Data Sheet in favor of the 16-section format of the Safety Data Sheet; and requiring employers to give training on the elements of the new labels and Safety Data Sheets.
Employers are also required to provide certain employees with information and training on topics such as the presence of hazardous chemicals in an employee’s work area, the location and availability of lists of hazardous chemicals and safety data sheets, and measures employees can take to protect themselves.
The latest employer compliance deadline under this final rule was June 1, 2016. As of that date, employers were required to update their workplace alternative labeling system as well as the hazard communication program (as necessary). As of that deadline, employers should have implemented a workplace labeling and hazard communication program that is up-to-date and complies with the aforementioned requirements (i.e., all Material Safety Data Sheets are replaced with the newer Safety Data Sheets). Employers were also required to provide additional employee training for newly identified physical or health hazards. The June 1 deadline follows a December 1, 2013 deadline for training employees on the new label requirements and safety data sheet format.
Hazard communication is the second most frequently violated OSHA standard (fall protection is first).
INJURY AND ILLNESS DATA
Existing OSHA regulations require many employers to keep records of injuries and illnesses in the workplace. The purpose of this recordkeeping requirement is to allow employers and employees to identify hazards, fix problems, and prevent injury and illness.
In May of 2016, OSHA issued a final rule modifying the injury and illness data collection requirements by requiring certain employers to submit injury and illness data for posting on the agency’s website. Employers in certain high-hazard industries as well as establishments with 250 or more employees in industries covered by the existing illness and injury recordkeeping regulation are subject to the new data submission requirement and will be required to submit records electronically to OSHA. The data collection/reporting form to be used depends on the industry and size of the establishment. The final rule also contains an anti-retaliation provision to promote an employee’s right to report injuries and illness. A clarification of the recordkeeping and reporting rule was issued by OSHA on December 19, 2016 in response to a decision from the Court of Appeals for the District of Colombia Circuit. The purpose of the clarification is to make clear that the duty to make and maintain accurate records of work-related injuries and illnesses is an ongoing obligation. See 81 Fed. Reg. 91792-91810 (December 19, 2016).
The final rule becomes effective on January 1, 2017. The new requirements do not change an employer’s existing obligation to complete and retain injury and illness records.
When reviewing policies and procedures to ensure compliance in advance of the January 1, 2017 deadline, employers should also review their drug testing policies. While the new rule does not prohibit drug testing, employers should bear in mind that drug testing, or the threat of drug testing, may not be used as a form of retaliation when an employee reports an injury or illness. Drug testing in compliance with state or federal laws or regulations, however, is not prohibited, as there would be no retaliatory motive in these instances.
SILICA DUST ENGINEERING CONTROLS
OSHA issued a final rule, effective June 23, 2016, designed to address the problem of lung cancer, silicosis, chronic obstructive pulmonary disease, and kidney disease by curtailing worker exposure to respirable crystalline silica. Workers in industries such as brick manufacturing, foundries, hydraulic fracturing, or construction workers who drill, cut, crush, or grind materials such as concrete and stone are exposed to crystalline silica in the workplace.
The final rule does the following:
- Reduces the permissible exposure limit for respirable crystalline silica to 50 micrograms per cubic meter of air (average over an 8-hour shift);
- Requires employers to use engineering controls (i.e., water or ventilation) to limit worker exposure to the permissible exposure limit and to provide respirators when engineering controls cannot adequately limit exposure; and
- Requires employers to limit worker access to high exposure areas, develop a written exposure control plan, offer medical exams to highly exposed workers, train workers on risks of silica and how to limit exposure, and provide information about lung health to workers.
Different industries have different compliance deadlines. The Construction industry must comply with the new standards by June 23, 2017. General Industry and Maritime must comply by June 23, 2018. Hydraulic Fracturing must comply by June 23, 2018 (except that engineering controls have a compliance deadline of June 23, 2021).
SAFETY AND HEALTH PROGRAMS
In October of 2016, OSHA promulgated a new guidance document entitled “Recommended Practices for Safety and Health Programs.” The guidance document sets forth recommended practices for employers to address safety and health issues in the workplace. Recommended practices are aimed at promoting management leadership, worker participation, hazard identification and assessment, hazard prevention and control, education and training, program evaluation and improvement, and addressing the issue of multi-employer worksites. A copy of the guidance document can be obtained at OSHA's website.
OSHA’s webpage also contains resources such as downloadable templates, worksheets, and reference materials that can be used to develop safety and health programs. Further, OSHA continues to offer an “On-Site Consultation Program,” providing free and confidential OSHA compliance advisory services that are separate from enforcement, and therefore do not result in penalties. This program is available to small and medium-sized businesses. Because the program is voluntary, consultations must be requested using OSHA’s Consultation Directory. The consultant will set up a visit date and will survey the entire work place to point out any safety risks. Findings are reviewed during the visit and a detailed, written report explaining the findings is sent afterwards. In 2016, OSHA conducted 28,000 visits to small businesses through its On-Site Consultation Program.
Contact Laura Rideout at [email protected] for additional information regarding any of these 2016 OSHA developments and for assistance auditing existing policies and procedures to ensure compliance.