September Safety Initiatives to Consider
We hope everyone is having a safe and enjoyable start to the fall. For many employers, the end of summer marks the beginning of an increased production season. It is an important time to make sure your employees understand safety cannot be sacrificed as production increases. Workplace safety should not simply be emphasized during large scale safety initiatives. Workplace safety should be part of the employment culture.
Secretary of State Update
Deputy Assistant Secretary of Labor for OSHA Appointed
President Trump has not yet nominated an assistant secretary of labor for OSHA. Although Tom Galassi remains the acting head of the agency, Loren Sweatt was appointed as the deputy assistant secretary of labor on July 24, 2017. Sweatt previously served the U.S. House of Representatives’ Committee on Education and the Workforce as a senior policy advisor.
As discussed in further detail in the Enforcement and Cooperation section, Secretary Acosta and OSHA continue to indicate an increased willingness to work cooperatively with employers to ensure worker safety.
Regulatory Updates
Silica Enforcement – Points for Trying
OSHA began enforcing the respirable crystalline silica in construction standard September 23, 2017. Last week, however, Galassi instructed his regional administrators to “assist employers who are making good faith efforts to meet the new requirements to assure understanding and compliance.” This enforcement moratorium will last until October 23, 2017. On the other hand, “[i]f, upon inspection, it appears an employer is not making any efforts to comply, OSHA’s inspection will not only include collection of exposure air monitoring . . . , but those employers may also be considered for citation.” Memo from Galassi to Regional Administrators, Launch of Enforcement of the Respirable Crystalline Silica in Construction Standard, 29 CFR § 1926.1153, Sept. 20, 2017.
This instruction marks a continuation of OSHA’s increased focus on cooperation. Employers should, of course, make a good faith effort to comply with the standard during the 30-day period.
Crane Operator Certification Delayed
On August 30, 2017, OSHA published a Notice of Proposed Rulemaking “proposing to delay the deadline and extend the existing employer duty to ensure that operators of equipment covered by this standard are competent to operate the equipment safely for one year to November 17, 2018.” Comments are due by September 29, 2017. Instructions for submitting comments are contained in the notice.
Electronic Recordkeeping Rule – Injury Tracking Application
Last month, OSHA launched the Injury Tracking Application on which employers can submit the information from the 2017 Form 300A Summary of Work-Related Injuries and Illnesses. After briefly shutting down the application due to a potential security breach, it is once again active and can be accessed on OSHA’s website.
The deadline by which certain employers must submit the information from the 2016 300As remains December 1, 2017. The two proceedings challenging to the rule remain administratively closed and stayed; however, both proceedings may resume before the December 1 deadline depending on whether OSHA decides to revise or remove portions of the rule before then.
Employers may submit the information from the 2016 300As at any time between now and December 1, 2017, but employers may wish to consider waiting until closer to the deadline in case OSHA decides to revise or remove all or part of the requirement.
Additional information on the rule and these challenges can be found in our previous posts from May 18 and June 27.
Lockout/Tagout
President Trump’s first regulatory agenda includes a request for information or, alternatively, a stakeholder meeting to explore potential revisions to the lockout/tagout (LOTO) standard to address computer-based controls that have become more prevalent and accepted internationally. This would be a welcome revision for many general industry companies that often must modify equipment from international manufacturers that increasingly implement technologically advanced designs that do not necessarily align with the LOTO standard’s scheme for hazardous energy control.
The agenda marks a notable change by OSHA. Last fall, under the guise of its Standard Improvement Project, the previous administration proposed fundamentally altering the scope and application of the LOTO standard by deleting the term “unexpected” from the standard entirely. 81 Fed. Reg. 68,503. The Standard Improvement Project is currently awaiting issuance as a final rule. The current administration will likely heed many of the comments that were submitted in opposition to this revision. If, however, OSHA ignores the concerns voiced by employers and removes the word “unexpected” from the standard, employers will have to reevaluate their LOTO programs and procedures to account for the change in the standard.
Enforcement Update
Continued Enforcement and Cooperation: Electronic Recordkeeping Rule – Injury Tracking Application
Review Comission Update