ABC, NAHB Applaud D.C. Circuit Court Decision to Reject Lawsuit to Compel OSHA to Issue Emergency Temporary Standard for Infectious Diseases/COVID-19

WASHINGTON, June 11 — Associated Builders and Contractors Vice President of Health, Safety, Environment and Workforce Development Greg Sizemore and National Association of Home Builders Chief Executive Officer Jerry Howard issued the following joint statement today on the D.C. Circuit Court’s decision to reject a lawsuit brought by the AFL-CIO to compel the Occupational Safety and Health Administration to issue an “emergency temporary standard” for infectious diseases/COVID-19:

“We applaud the D.C. Circuit’s decision, which affirms that OSHA’s comprehensive response to the COVID-19 outbreak currently eliminates the need for an emergency temporary standard for infectious diseases and COVID-19 covering all employees. The government is learning new information about COVID-19 and how best to mitigate related hazards on an almost daily and sometimes even hourly basis, which is why a static, intransigent rule would not be an appropriate response. OSHA’s resources are better deployed by developing timely and situational-specific guidance documents, which can be adjusted and adapted as the agency and public health authorities better understand the pandemic.

“In the construction sector, even without a COVID-19 outbreak, safety and health is always our No. 1 priority. As representatives of residential, nonresidential and industrial construction contractors across the country, we remain committed to collaborating with state and local health officials, as well as across market sectors, to diligently identify and implement new health and safety protocols on our jobsites to protect construction employees amid the COVID-19 outbreak.” 

U.S. Department of Labor’s OSHA Issues Guidance for Respiratory Protection During N95 Shortage Due to COVID-19 Pandemic

WASHINGTON, DC – On April 3, The U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) has issued interim enforcement guidance to help combat supply shortages of disposable N95 filtering face piece respirators (N95 FFRs). The action marks the department’s latest step to ensure the availability of respirators and follows President Donald J. Trump’s Memorandum on Making General Use Respirators Available.

Due to the impact on workplace conditions caused by limited supplies of N95 FFRs, employers should reassess their engineering controls, work practices and administrative controls to identify any changes they can make to decrease the need for N95 respirators.

If respiratory protection must be used, employers may consider use of alternative classes of respirators that provide equal or greater protection compared to an N95 FFR, such as National Institute for Occupational Safety and Health (NIOSH)-approved, non-disposable, elastomeric respirators or powered, air-purifying respirators. 

When these alternatives are not available, or where their use creates additional safety or health hazards, employers may consider the extended use or reuse of N95 FFRs, or use of N95 FFRs that were approved but have since passed the manufacturer’s recommended shelf life, under specified conditions.

This interim guidance will take effect immediately and remain in effect until further notice. This guidance is intended to be time-limited to the current public health crisis. Visit OSHA’s Coronavirus webpage regularly for updates.

For further information about COVID-19, please visit the U.S. Department of Health and Human Services’ Centers for Disease Control and Prevention.

Under the Occupational Safety and Health Act of 1970, employers are responsible for providing safe and healthful workplaces for their employees. OSHA’s role is to help ensure these conditions for America’s working men and women by setting and enforcing standards, and providing training, education and assistance. For more information, visit www.osha.gov.

The mission of the Department of Labor is to foster, promote and develop the welfare of the wage earners, job seekers and retirees of the United States; improve working conditions; advance opportunities for profitable employment; and assure work-related benefits and rights.

U.S. Department of Labor to host national online dialogue on FFCRA implementation

In a letter today Brian Crain, Compliance Assistance Specialist with US DOL OSHA/Region II, announced a national online dialogue concerning compliance assistance materials and outreach strategies as related to the implementation of the Families First Coronavirus Response Act (FFCRA).

Crain noted, “We wanted to make you aware that the U.S. Department of Labor will be hosting a national online dialogue to provide employers and employees with an innovative opportunity to offer their perspective as the Department develops compliance assistance materials and outreach strategies related to the implementation of the Families First Coronavirus Response Act (FFCRA). The ideas and comments gathered from this dialogue will inform compliance assistance guidance, resources, and tools, as well as outreach approaches, that assist employers and employees in understanding their responsibilities and rights under the FFCRA.  Input is needed by March 29, 2020. Anybody who is interested can participate online at >>https://ffcra.ideascale.com<< from March 23 through March 29, 2020 or can join a Twitter chat hosted by @ePolicyWorks on March 25, 2020 at 2 p.m. using the hashtag #EPWChat.”

OSHA Enforcement for Respirable Crystalline Silica in Construction Standard, 2018-2019: By the Numbers

For construction employers anxious over how the Occupational Safety and Health Administration (OSHA) and state plan states are enforcing the Respirable Crystalline Silica in Construction Standard, the last two calendar years of enforcement data provided by the agency offers some insight. In 2019, OSHA and state plan states issued 973 violations under 29 C.F.R. Section 1926.1153, the Respirable Crystalline Silica standard for construction. This represents a 15.4 percent increase from the 843 violations under Section 1926.1153 issued in 2018. (According to OSHA, 28 states have OSHA-approved state plans. These plans are required to have standards and enforcement programs that are at least as effective as OSHA’s and may have different or more stringent requirements.)

The table below presents the five most common violations of the silica standard in construction. The numbers refer to the total number of violations issued in each calendar year, based on the date of issuance.

Top Five Violations

Calendar Year 2018Calendar Year 2019
StandardNo. of violations issuedStandardNo. of violations issued
§ 1926.1153(d)(2)(i) Exposure assessment 185§ 1926.1153(c)(1) Table 1 222
§ 1926.1153(c)(1) Table 1 179§ 1926.1153(d)(2)(i) Exposure assessment 189
§ 1926.1153(g)(1) Written ECP 161§ 1926.1153(g)(1) Written ECP 173
§ 1926.1153(i)(1) HazCom 78§ 1926.1153(i)(1) HazCom 91
§ 1926.1153(i)(2)(i) Employee information and training 33§ 1926.1153(i)(2)(i) Employee information and training 68

The data is consistent with our analysis in June 2018 when OSHA began enforcing the Respirable Crystalline Silica in Construction Standard and appears to show that inspectors are following one of two enforcement approaches. In Approach One, the inspector takes a “Table 1 First” attitude and focuses on the employer’s adherence to Table 1. If a shortcoming is found (say, not using a saw with an integrated water delivery system, or not following Table 1’s respiratory protection requirements), then the inspector issues a violation of Table 1, Section 1926.1153(c)(1). In Approach Two, the inspector sees that the employer is not following Table 1, and then focuses attention on the employer’s exposure assessment efforts. If the employer has failed to perform an exposure assessment (or has, but the inspector deems it inadequate), then the inspector issues a violation under the exposure assessment requirement, Section 1926.1153(d)(2)(i). Inspectors seemed evenly divided on the two approaches in 2018, but gave Approach Two a slight preference in 2019.

Is an employer better off under one enforcement approach or the other? It depends. Under Approach One, inspectors issued Serious classifications most of the time (approximately 81 percent in 2018 and 74 percent in 2019) and heftier fines ($3,979.23 per violation on average in 2018, $2,624.38 in 2019). Under Approach Two, inspectors also issued Serious classifications most of the time (roughly 73 percent in both 2018 and 2019), but lower penalties ($955.21 in 2018, and $896.29 in 2019). If the employer’s primary concern is penalty amount, then Approach Two may be the better option. But if the employer’s concern is the classification of the violation, neither approach appears to show an appreciable difference.

Rounding out the Top Five most commonly cited violations are: the lack of a (or an inadequate) written exposure control plan; failure to incorporate respirable crystalline silica into the company’s hazard communication program; and failure to train or inadequate training on silica hazards. A common shortcoming of written exposure control plans is having a “global” exposure control plan for all of an employer’s work sites, with no detail on the local work site. Another common violation is the failure to designate a competent person on location (cited under Section 1926.1153(g)(4) 23 times in 2018, and 42 times in 2019).

For hazard communication and training issues, inspectors will commonly ask to see training records and a safety data sheet (SDS) for silica. If none is provided, then one can expect an inspector to issue citations under Sections 1926.1153(i)(1) and (i)(2)(i). Keep in mind that inspectors will likely also quiz employees, asking them about what they know about silica. If the employees appear to have no clue as to what the inspector is talking about, then the inspector may conclude that the company’s hazard communication and training programs are inadequate, and issue citations accordingly.

What is OSHA not citing employers for under the Respirable Crystalline Silica in construction standard? Under Section 1926.1153(j), covering recordkeeping, there were only two violations issued in two years. Housekeeping violations are also uncommon. For example, under the general ban on dry sweeping in Section 1926.1153(f)(1), OSHA issued 18 violations in 2018 and 14 in 2019. Under the general ban on use of compressed air, OSHA issued eight violations in 2018, and only one in 2019. — John Martin, Ogletree, Deakins, Nash, Smoak & Stewart, P.C.

One More Step Toward Aggressive Enforcement of OSHA’s Construction Silica Standard.

OSHA Publishes New Construction Industry Silica Frequently Asked Questions (FAQs).

With no fanfare whatsoever, OSHA supposedly began enforcing the new Silica Standard on July 23. Compliance with most of the Standard’s requirements actually began on June 23, 2018. However, in a memo issued by OSHA’s Acting Deputy Assistant Secretary, Galen Blanton, OSHA’s regional administrators were informed that for the first 30 days, OSHA was to assist employers that were making good-faith efforts to meet the new standard’s requirements. In other words, in those circumstances, citations were unlikely to be issued for noncompliance. And indeed, so far, we have seen minimal OSHA focus on silica.

Realistically, one assumes that OSHA is awaiting the final Silica “Directive” to replace the October 19, 2017 Interim Enforcement Guidance for the Respirable Crystalline Silica in Construction Standard before aggressively enforcing the new Standard.

We moved a bit closer to aggressive enforcement with OSHA’s publication of the new Silica Frequently Asked Questions (FAQ). Construction employers should immediately review the whopping 53 Frequently Asked Questions (FAQs) which provide guidance to employers and employees regarding OSHA’s respirable crystalline silica standard for construction.

Through the Construction Industry Safety Coalition (CISC), the Associated General Contractors of America (AGC) and other groups were heavily involved in the formulation of these FAQs.  The development of the FAQs stemmed from litigation filed against OSHA by numerous construction industry trade associations challenging the legality of OSHA’s rule.

OSHA has also agreed to issue a Request for Information (RFI) on Table 1 to revise the Table to improve its utility.  AGC will continue to look for ways to work with OSHA to improve the workability of this significant rule.

The FAQs are extensive and organized by topic.  A short introductory paragraph is included for each group of questions and answers to provide background information about the underlying regulatory requirements.  A  four-page document with some of the clarifications and a PDF version of all the FAQs has also been created.

These useful FAQs follow OSHA’s recent release of six Construction Silica training videos for Table 1 Tasks:

Controlling Silica Dust in Construction Videos for Table 1 Tasks

An impressive number of contractors have been proactive and have been investigating Table 1 and other tasks, and have found challenges. The key is for employers to not await OSHA citations but to build justification for its approach at each job. — Fisher Phillips

OSHA Adds New Silica Compliance Materials – Slides, Videos, And FAQ

Need training materials and background information for your construction workforce on OSHA’s new silica rule? The agency recently added to its web site a number of materials that may come in handy, particularly for those in the construction industry.

Though extremely controversial, the silica rule largely took effect in the construction industry last year and took effect for most other employers a few weeks ago. Smaller companies especially may have limited resources to prepare compliance and training materials. The materials OSHA recently posted and announced for the construction industry include:

—  Avi Meyerstein, Husch Blackwell LLP