OSHA Update—Proposed Revisions Intended to Modernize Various OSHA Standards

11 October 2016 Labor & Employment Law Perspectives Blog

The Occupational Safety and Health Administration (“OSHA”) recently announced that it is proposing eighteen revisions to its recordkeeping, general industry, maritime, and construction regulations.  With the changes proposed, OSHA intends to modernize certain standards that may be “confusing, outdated or unnecessary.”  These proposed revisions are the fourth part of the Standards Improvements Project, which started in 1995.  2011 was the last time OSHA proposed revisions under the Project.

The revisions are proposed as follows:

  • Reporting Job-Related Hearing Loss: Clarifies that the agency’s determination of whether an employee’s hearing loss is “work-related” is made using specific, clear criteria.
  • Lockout/Tagout: Clarifies employers’ duties to protect employees from “unexpected energization” during “servicing” of equipment to remove the word “unexpected” from the requirement.
  • Chest X-Rays: Removes the requirement to conduct periodic chest x-rays for inorganic arsenic, coke oven emissions, and acrylonitrile.
  • X-Ray Storage: Permits storage of x-rays in digital format.
  • Lung-Function Testing: Updates lung-function testing requirements in the cotton dust standard.
  • Feral Cats: Removes the phrase “feral cats” from the definition of “vermin” in the sanitation provision of the Shipyard Employment standard.
  • 911 Emergency Services: Requires the conspicuous posting of telephone numbers for emergency services (and, in some cases, location information) in areas where 911 services are unavailable.
  • Permissible Exposure Limits (PELs): Corrects and clarifies PEL requirements in the construction standard for consistency with PELs in other standards.
  • Process Safety Management (PSM) in Construction: Cross-references the general industry PSM standard in the construction standard (and removes existing PSM provisions from the construction standard) for consistency.
  • Personal Protective Equipment (PPE): Requires employers to select PPE that fits employees individually and clarifies that the construction PPE requirements will be consistent with the general industry standards.
  • Lanyard Break Strength: Standardizes lanyard break-strength requirements for both the construction and general industry standards.
  • Manual on Uniform Traffic Control Devices (MUTCD): Aligns the provisions regarding traffic signs and devices, flaggers, and barricades with similar Department of Transportation regulations for employers in construction.
  • Load Limit Postings: Exempts single-family dwellings and townhouses from the requirement to post maximum safe-load limits on the floors of buildings under construction.
  • Excavation Hazards: Outlines a presumption that a hazard exists when loose rock, soil, or excavated material is beside a trench.
  • Underground Construction—Diesel Engines: Updates outdated language to cross-reference revised Mine Safety Health Administration provisions regarding diesel engines.
  • Underground Construction—Decompression Tables: Replaces outdated decompression tables with “modern French decompression” tables.
  • Rollover Protective Structures: Replaces outdated requirements with appropriate consensus standards in the construction standard.
  • Regulation of Coke Oven Emissions in Construction: Removes related provisions from the construction standard; such work is to be governed by the general industry standard.
  • Collection of Social Security Numbers (SSNs): Removes the requirement to include employees’ SSNs on various records from general industry, construction, and maritime standards.

OSHA claims these changes will cost employers about $27,899.00 per year while saving them “an estimated $3.2 million per year.”  According to OSHA’s cost-benefit analysis, it anticipates that most of the cost savings will go to home builders who will no longer have to post load limits in single-family dwellings or townhouses under construction, while the rest of the savings will go to employers who will no longer have to do periodic chest x-rays.  Nevertheless, the proposed rule changes do not constitute an “economically significant regulatory action” under Executive Order 12866 or the Unfunded Mandates Reform Act.  Thus, the stated benefit to employers is to ease administrative and compliance burdens.

Whether that benefit will come to fruition remains to be seen—especially given the fact that one of the proposed changes for the excavation provision in the construction standard may result in an evidentiary presumption to OSHA’s benefit. OSHA is accepting comments on the proposed rule until December 5, 2016.  This means that the proposed changes will not take effect, if at all, for some time.  But it is never too early for employers to plan for future regulatory actions.  Employers with questions about the proposed rule changes should contact an employment attorney with knowledge of and experience with OSHA regulations and enforcement efforts.

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