Health and Safety Regulatory Update

Walking-Working Surfaces Standard

The final rule applies to all general industry workplaces and covers all walking-working surfaces, which include horizontal and vertical surfaces such as floors, stairs, roofs, ladders, ramps, scaffolds, elevated walkways, and fall protection systems. The rule also includes a new section under the general industry Personal Protective Equipment standards that establishes employer requirements for using personal fall protection systems.

Major Changes

Fall protection flexibility (§1910.28(b)).  The final rule allows employers to protect workers from falls by choosing from a range of accepted fall protection systems, including personal fall protection systems. It eliminates the existing mandate to use guardrails as the primary fall protection method and gives employers the flexibility to determine what method they believe will work best in their particular workplace situation. 

• The final rule allows employers to use non-conventional fall protection practices in certain situations, such as designated areas on low-slope roofs for work that is temporary and infrequent and fall protection plans on residential roofs when employers demonstrate guardrail, safety net, or personal fall protection systems are not feasible or create a greater hazard (§1910.28(b)(1) and (b)(13));  
• Updated scaffold requirements (§1910.27(a)).  The final rule replaces the outdated general industry scaffold standards with the requirement that employers comply with OSHA's construction scaffold standards; 
• Phase-in of ladder safety systems or personal fall arrest systems on fixed ladders (§1910.28(b)(9)).  The final rule phases in over 20 years a requirement to equip fixed ladders (that extend over 24 feet) with ladder safety or personal fall arrest systems and prohibits the use of cages and wells as a means of fall protection after the phase-in deadline.  The final rule grandfathers in cages and wells on existing ladders, but requires during the phase-in period that employers equip new ladders and replacement ladders/ladder sections with ladder safety or personal fall arrest systems; 
• Rope descent systems (RDS) and certification of anchorages (§1910.27(b)).  The final rule codifies OSHA's memorandum for employers who use RDS to perform elevated work.  The final rule prohibits employers from using RDS at heights greater than 300 feet above grade unless they demonstrate it is not feasible or creates a greater hazard to use any other system above that height.  In addition, the final rule requires building owners to provide and employers to obtain information that permanent anchorages used with RDS have been inspected, tested, certified, and maintained as capable of supporting at least 5,000 pounds per employee attached. 
• Personal fall protection system performance and use requirements (§1910.140).  The final rule, which allows employers to use personal fall protection systems (i.e., personal fall arrest, travel restraint, and positioning systems), adds requirements on the performance, inspection, use, and maintenance of these systems.  Like OSHA's construction standards, the final rule prohibits the use of body belts as part of a personal fall arrest system;
• Inspection of walking-working surfaces (§1910.22(d)).  The final rule requires that employers inspect walking-working surfaces regularly and as needed and correct, repair, or guard against hazardous conditions; and
• Training (§1910.30).  The final rule adds requirements that employers ensure workers who use personal fall protection and work in other specified high hazard situations are trained, and retrained as necessary, about fall and equipment hazards, including fall protection systems.  Employers must provide information and training to each worker in a manner the worker understands.

Timeline

Most of the rule becomes effective 60 days after its publication in the Federal Register (January 17), but some provisions have delayed effective dates, including:

• Ensuring exposed workers are trained on fall hazards (6 months),
• Ensuring workers who use equipment covered by the final rule are trained (6 months),
• Inspecting and certifying permanent anchorages for rope descent systems (1 year),
• Installing personal fall arrest or ladder safety systems on new fixed ladders over 24 feet and on replacement ladders/ladder sections, including fixed ladders on outdoor advertising structures (2 years),
• Ensuring existing fixed ladders over 24 feet, including those on outdoor advertising structures, are equipped with a cage, well, personal fall arrest system, or ladder safety system (2 years), and
• Replacing cages and wells (used as fall protection) with ladder safety or personal fall arrest systems on all fixed ladders over 24 feet (20 years).

Walking-Working Surfaces and Personal Fall Protection Systems Final Rule FAQs can be found at:

https://www.osha.gov/walking-working-surfaces/faq.html

Additional information concerning the new standard will be posted on the OSHA Alliance webpage in the Regulatory Update section. http://www.isri.org/safety-best-practices/isri-safety/isri-safety-resources/osha-isri-alliance#.WDMOCNiQypo

ISRI Submits Comments on Proposed FMCSA and NHTSA Regulation
Both the Federal Motor Carrier Safety Administration (FMCSA) and the National Highway Transportation Safety Administration (NHTSA) are proposing regulations that would require vehicles with a gross vehicle weight rating of more than 26,000 pounds to be equipped with a speed limiting devise initially set to a speed no greater than a speed to be specified in a final rule and would require motor carriers operating such vehicles in interstate commerce to maintain the functional speed limiting devices set to the to-be-determined speed for the service life of the vehicle. The speed limits under consideration in the notice are 60 miles per hour (MPH) and 68 MPH.

With feedback and support from the ISRI Transportation Safety Task Force, ISRI filed comments with the Federal Motor Carrier Safety Administration (FMCSA) and the National Highway Transportation Safety Administration (NHTSA) in regards to the Notice of Proposed Rulemaking (NPRM) for the Federal Motor Vehicle Safety Standards; Federal Motor Carrier Safety Regulations; Parts and Accessories Necessary for Safe Operation and Speed Limiting Devices. ISRI recommended that the proposed rule be withdrawn, researched, and rewritten for the benefit of the motoring public.

 ISRI provided several well stated arguments against this proposed rule including the issue of this rule not allowing for instances where trucks can drive for hundreds of miles without traffic interaction (western states) and how it being of little use on roads where the posted speed is well below any proposed governed speeds. ISRI recommended that FMCSA and HHTSA consider motor carriers policing drivers internally by using current technologies that mitigate risk by influencing driver behavior using GPS, electronic log devices, and accident avoidance devices. 

OSHA Focuses on Reducing Amputations

For manufacturing industry workers, amputation is an enormous risk and the cause of more than a 1,400 serious injuries each year. In 2015, the U.S. Department of Labor's Occupational Safety and Health Administration received reports of more than 2,600 amputations nationwide - 57 percent of them suffered by manufacturing workers.

In an effort to stem the tide, OSHA recently announced a heightened focus on amputation hazards in Arkansas, Louisiana, Oklahoma, and Texas. The goal is to enforce safety regulations and hold employers responsible for protecting workers and reducing instances of worker amputations.

The push begins with a targeted enforcement phase, including on-site inspections and a review of employers in industries with machinery that exposes workers to amputation hazards. Federal safety and health inspectors will evaluate operations, working conditions, recordkeeping, and safety and health programs to ensure compliance.

OSHA will conduct a surge of planned inspections immediately. Area offices will continue to open inspections in response to complaints, hospitalizations, and fatalities. Contact Terry Cirone for information about ISRI safety tools that address machine guarding.

The New Administration

President-elect Donald Trump will assume office on January 20, 2017, with a Republican majority in both the Senate and the House of Representatives. There will be a considerable amount time and effort by many trying to predict the direction of regulatory policy and enforcement within OSHA.  The following is the opinion of Edwin G. Foulke Jr. who served as head of OSHA from April 2006 to November 2008 as taken from an excerpt provided in the publication EHS today.  Foulke also served on the Occupational Safety and Health Review Commission (OSHRC) in Washington, D.C., chairing the commission from March 1990 to February 1994.

“Often, the incoming administration continues working on some of the items on the regulatory agenda and there will be some changes in focus at OSHA as a result of the Trump administration,” said Foulke, who offered this list of things he expected the Trump administration to revisit:

• Walking-Working Surfaces Standard: This oldie but goodie has been on OSHA’s regulatory agenda since 1990. OSHA published a notice to reopen the rulemaking for comment on May 2, 2003. Based on comments received on the 2003 notice, OSHA determined that the rule proposed in 1990 was out of date and did not reflect current industry practice or technology.

The agency published a second proposed rule on May 24, 2010, which reflected current information and increased consistency with other OSHA standards. Hearings were held Jan. 18-21, 2011. The proposed standard is listed on the Spring 2016 regulatory agenda as “Final Rule Stage.”

• Respirable Silica Standard – This standard has drawn criticism from a number of industry and business groups, which claim that key components of the standard – particularly ones related to exposure assessments, monitoring of respirable silica levels by a competent person and medical examinations for workers – are burdensome and that compliance is nearly impossible.

The Trump administration might re-examine the standard, “because the business community has done a good job of showing that compliance just isn’t feasible,” says Foulke. The rule is  urrently is being litigated however, and a judge could delay the June 23, 2017 compliance date for construction and the June 23, 2018 effective date for general industry and maritime. Potentially, the Trump administration could re-open the rule-making process for the standard and revise it.

• Recording and Reporting Occupational Injuries and Illnesses – This rule, revising OSHA’s Recording and Reporting Injuries and Illnesses regulation, was issued on May 11 and was scheduled to take effect Aug. 10, including provisions of the rule that prohibit employers from discouraging workers from reporting an injury. Phased-in data submissions were scheduled to begin in 2017.

As a result of litigation, OSHA agreed to delay enforcement of the anti-retaliation provisions until Dec. 1. Legal challenges could impact its implementation even further and that it will be a regulation revisited by the Trump administration, which could reopen and revise it.

•  Whistleblower Statutes – OSHA’s Whistleblower Protection Program enforces the whistleblower provisions of more than 20 whistleblower statutes protecting employees who report violations of various workplace safety and health, airline, commercial motor carrier, consumer product, environmental, financial reform, food safety, health insurance reform, motor vehicle safety, nuclear, pipeline, public transportation agency, railroad, maritime and securities laws. Rights afforded by these whistleblower protection laws include, but are not limited to, worker participation in safety and health activities, reporting a work-related injury, illness or fatality or reporting a violation of the statutes herein.

Changes to whistleblower statutes in the past two years have shifted the focus from the whistleblower providing the “burden of proof” that retaliation has occurred to the secretary of labor finding there is “reasonable cause to believe that retaliation has occurred,” a more relaxed standard of proof that favors the whistleblower. Foulke thinks the Trump administration will change the focus back to requiring a stronger burden of proof.

•  Increased OSHA Penalties – For the first time since 1990, OSHA increased fines for violations of workplace health and safety laws and did it in a big way: The fine for a willful or repeat violation jumped from $70,000 to $124,709 per violation.  In November 2015, Congress enacted legislation requiring federal agencies to adjust their civil penalties to account for inflation. In response, the DOL adjusted penalties for OSHA. Congress can change that statute once again under pressure from a Trump administration.
• OSHA Enforcement – Foulke expects the Trump administration to take a look at several aspects of OSHA enforcement, including: 

Repeat Violations – According to the OSHA Field Manual used by inspectors, an employer may be cited for a repeated violation if that employer has been cited for the same or substantially similar condition or hazard and the citation has become the final order of the Occupational Safety and Health Review Commission. Foulke points out a citation can be used as the basis of a repeated violation if it was issued within five years of the final order date of the previous citation or within five years of the final abatement date. He believes the look back date of five years, which recently was increased from three years, might be rolled back to three years by the Trump administration, particularly given the increase in fines for repeat citations.

 Severe Violators Enforcement – “It has been very active under the Obama administration,” says Foulke, with many companies being added to the severe violators list. He expects the Trump administration to not only look at that program but to take a look at the companies included on the list and why they were placed on it.

• Compliance Assistance – The Obama administration appears to be focused on enforcement, and Foulke believes that compliance assistance will be a focus for the Trump administration. The Obama administration pulled staff from compliance assistance programs to bolster the number of staffers in enforcement. Foulke believes the reverse will be true in a Trump administration.

“I believe that compliance assistance and partnership and alliance programs will be a focus in the new administration,” says Foulke, who notes such programs were a focus for OSHA when he was assistant secretary of labor.

Often, Republican administrations are seen as soft on enforcement, while Democratic administrations are seen as tough. Interestingly, in FY 2015 during a Democratic administration, there were 35,820 OSHA inspections. In FY 2007, when Foulke was assistant secretary of labor for Republican President George W. Bush, there were 39,324 OSHA inspections.

Guidelines for Safety and Health Programs Updated

OSHA has recently updated the Guidelines for Safety and Health Programs (Guidelines) it first released 30 years ago, to reflect changes in the economy, workplaces, and evolving safety and health issues. The new Recommended Practices have been well received by a wide variety of stakeholders and are designed to be used in a wide variety of small and medium-sized business settings.

The Recommended Practices present a step-by-step approach to implementing a safety and health program, built around seven core elements that make up a successful program.  You can download these Guidelines by going to Safety and Health Programs.  Read more about the Guidelines by going to ISRI’s OSHA Alliance Webpage.

Preliminary Results - Most Frequent OSHA Citations 

Last week OSHA released preliminary results for its most frequent violations at the 2016 National Safety Congress in Anaheim, California.  Patrick Kapust, deputy director at OSHA'S Directorate of Enforcement programs, said the results are similar year-over-year, but a particular citation may move up or down the list.
 

The list is comprised of all violations taken into account through Sept. 30. A definitive list will be available closer to year-end 2016.

Top 10 Most Frequent OSHA Citations for General (1910) and Construction (1926) Industries.

BLS 2015 Safety Data Released

The United States Bureau of Labor Statistics (BLS) released its 2015 Workplace Injury and Illness Data last week.  The national injury and illness rate for private-sector employees decreased in 2015, continuing a more than decade-long trend, according to data released Oct. 27 by the Bureau of Labor Statistics.

Reported non-fatal injuries and illnesses occurred at a rate of 3.0 cases per 100 full-time workers in 2015, compared with 3.2 in 2014 and 3.3 in 2013. The rate has fallen each year for the past 13 years except in 2012, when the rate stayed the same as in 2011. 

The BLS data for our industry’s NAICS category of 42393 (recyclable material merchant wholesalers) in 2015 indicates:

• The total recordable cases of workplace injury and illness in 2015 was 5.0per 100,a slight increase from the 2014 rate of 4.7 per 100; and
• The rate for cases with days away from work, job restrictions or job transfers was 2.7 per 100, a decrease from 2.9 per 100 in 2014.

ISRI members can compare their 2015 metrics against these recently released numbers for purposes of benchmarking.  ISRI members can also take advantage of the many safety resources and tools offered by the association to augment their safety programs.