Overview
During the third quarter of 2017, the Occupational Safety and Health Administration continued work to slow the implementation and effects of rules finalized under the previous administration. The changes include a proposed delay of the certification deadline for construction crane operators and a possible re-working of rules for tracking workplace injuries and illnesses.
The sharing economy continues to be a high-profile issue, as that part of the economy continues to grow and Congress examines a possible third category of employee. Finally, Congress is continuing work on the 2018 fiscal year budget, the latest iteration of which has OSHA funding remaining flat as compared to 2017.
On the Horizon
Below are some of the key issues in which to anticipate developments in the months ahead:
- Cranes — OSHA has proposed extending by one year the certification deadline for construction crane operators. In a Federal Register notice Aug. 30, the Occupational Safety and Health Administration said it wants to delay the deadline to Nov. 17, 2018, and asks for comments on the possible change (RIN:1218-AC86) (82 Fed. Reg. 41,184). The regulation, which took effect in 2010, requires crane operators to pass a third-party certification test.
Enforcement of the mandate has been on hold because of disagreements on whether operators need separate certifications for cranes with different lifting capacities and designs. OSHA accepted comments on the proposal through Sept. 29, but the comment period has now closed.
- Mining — The Trump administration said Sept. 2 that it plans to name a former mining executive, David Zatezalo, to head the Mine Safety and Health Administration. The longtime coal boss has no government experience, but Zatezalo is expected to take a more cooperative, less punitive approach to mine safety than the Obama administration.
Zatezalo served for 15 years in top management roles at Windsor Coal Co., American Electric Power Co., Hopedale Mining, and Rhino Resources GP, LLC. He also worked as a manager at BHP Coal in Australia. He retired from his most recent post as Rhino’s president and chief executive officer in August 2013. If the Senate confirms Zatezalo, he will replace Wayne Palmer, who has served as the agency’s acting administrator since Aug. 21. Sen. Joe Manchin (D-W.Va.) said Sept. 27 that he could not support Zatezalo’s nomination.
Manchin said he was “not convinced” of Zatezalo’s suitability to oversee the agency. Manchin said the Mine Safety and Health Administration needs “strong and experienced leadership,” as illustrated by the 12 mine deaths since the beginning of 2017.
- Recordkeeping — OSHA intends to issue a proposal to reconsider, revise, or remove provisions of the Improve Tracking of Workplace Injuries and Illnesses final rule (81 Fed. Reg. 29,624). In June, the agency pushed back the deadline for enforcement of the rule, which, among other things, required certain employers to electronically report injuries and illness via an online portal.
The new deadline is Dec. 1, but OSHA has said it is working on revisions of the rule, which could be released this fall. An appropriations bill that has passed in the House of Representatives (H.R. 3354) includes an amendment that would eliminate funding for the rule. The amendment isn’t included in the Senate version of the bill.
Focus on Gig Workers
Background
Sharing-economy groups and employee-rights advocates clashed at a congressional hearing Sept. 6 over the need for new laws in response to the industry’s burgeoning workforce. Gig workers for sharing businesses such as Uber and Lyft are largely considered independent contractors, who don’t get minimum wage and overtime protections and aren’t entitled to unemployment benefits and workers’ compensation insurance. The House Education and the Workforce Committee heard from Michael Beckerman, president, and CEO of the Internet Association, and Sharon Block, a Department of Labor official during the Obama administration, among others. Beckerman urged lawmakers to be careful not to stifle growth.
The Internet Association describes itself as “the unified voice of the internet economy.” “Policymakers and regulators have put up roadblocks to consumer choice and competition” in some communities, Beckerman said. “In these areas, the community is worse off when arbitrary barriers are placed on new entrants,” he said. Block, executive director of Harvard University’s Labor and Worklife Program, had a different take. Basic labor standards should be incorporated into the shared economy, she suggested.
“We have a danger here of placing the online platform economy in one category and saying that our labor and employment laws don’t fit,” she said. “If you look at the specifics of many of these businesses, which is what the law compels us to do, and you look at the facts and circumstances, you will see current labor laws do fit quite nicely.” The hearing comes amid calls for the federal government to tweak employment tax and worker classification laws.
Third Type of Worker
Proposed
Both Democrats and Republicans have talked generally about updating federal laws such as the Fair Labor Standards Act, which offers minimum wage and overtime pay protections, to create a third category of worker. Democrats in this Congress introduced the Portable Benefits for Independent Workers Pilot Program Act (S. 1251, H.R. 2685), though neither the House nor the Senate has acted on the bills. The measure would create a Labor Department grant program aimed at local governments and nonprofits to experiment with health insurance and other portable benefits for the workforce.
The House version of the bill has three Democratic cosponsors and is assigned to the Workforce Committee. Beckerman’s suggestion about avoiding overregulation brought agreement from some committee Republicans, including Rep. Phil Roe of Tennessee. “One of the things we can do to stop this sharing economy and all this growth is to regulate it to death and basically that’s what ends up happening here in Washington,” he said.
“To fix a small problem we end up stomping out an entire way to make a living.” Roe’s comments were echoed by Rep. Virginia Foxx (R-N.C.), the committee’s chairwoman, who said Congress needs to make sure “outdated federal policies don’t stand in the way.” “The self-employed individuals who rely on the sharing economy for work don’t fit neatly into obsolete job categories defined in another era,” she said.
“So, there are important questions over how we can modernize policies to meet the needs of the future.” Balance Urged Committee ranking Democrat Rep. Bobby Scott (Va.) said Congress “must strike the right balance” and strive for a “just and reasonable” policy “We can support responsible growth while still maintaining what should be a bipartisan commitment to workers’ rights to a fair and stable wage, safe workplaces, and their ability to organize and collectively bargain,” he said. “Any suggestion that we can only do one or the other represents a false choice.”
Other Developments
Budget
Worker safety and health agencies would be funded in the fiscal year 2018 for the same amounts they received for the fiscal year 2017, according to a spending plan approved Sept. 7 by the Senate Appropriations Committee. The committee, by a 29-2 vote, turned back Trump administration efforts to cut the budgets for OSHA and the National Institute for Occupational Safety and Health. Under the Senate plan, OSHA would receive $552.8 million and NIOSH would receive $335.2 million. President Donald Trump had sought $543.3 million for OSHA and $200 million for NIOSH.
The committee approved $373.8 million for the Mine Safety and Health Administration, which is $2.4 million less than the White House sought. The appropriations bill—covering the departments of Labor and Health and Human Services—now goes to the full Senate, where no date has been set for a vote. Negotiators from the Senate and House of Representatives will meet and reconcile differences in their proposed allocations and any policy directions included with the dollars.
Enforcement Rules to protect construction workers from falls continue to dominate OSHA’s list of most commonly violated standards, although the number of violations dropped, the agency said Sept. 26 at the annual National Safety Council Congress in Indianapolis. There were 6,072 violations of the fall protection standard cited in fiscal 2016 as of Sept. 5, down from 6,929 in fiscal 2016. The fiscal year ends Sept. 30.
Preliminary violation numbers from last fiscal year fell across the board following years of dropping total inspection numbers, according to OSHA data. There were about 9,000 fewer inspections in fiscal 2016 than in fiscal 2011.
The preliminary violation numbers for last fiscal year also were calculated over a time period that was three to four weeks longer than for this year’s preliminary numbers. Other construction fall-related violations were ladders, scaffolding, and training, according to Patrick Kapust, deputy director of OSHA’s enforcement branch.
That construction violations are the most commonly cited isn’t a surprise; construction site visits account for about half of OSHA’s inspections. Dropping off the list of top 10 most-cited violations was electrical general requirements (29 C.F.R. § 1910.303), and was replaced by fall protection training. The violation numbers are preliminary because OSHA inspectors have up to six months following an inspection to issue citations.
Fatalities List
OSHA removed information on worker deaths, as well as an instructional video on reporting employer safety violations, from visible locations on the agency website’s home page Aug. 25. The agency said it changed the website so it didn’t inaccurately suggest employers were at fault for the workplace fatalities listed.
But former agency officials said the changes will make it more difficult for the public to learn about worker deaths and the importance of OSHA’s work. The changes include the removal of a box labeled “Workplace Fatalities” from the right-hand column of the home page, which had listed all workplace fatalities and names of those who had died.
Some of the information is available through the “data” button on the home page, but that lists only work-related fatalities for cases cited by OSHA and doesn’t include the workers’ names. Replacing the worker fatalities box is information on training and compliance assistance programs.
OSHA spokeswoman Amanda Kraft wrote in an email to Bloomberg BNA Aug. 25 that the previous home page listed initial reports of worker fatalities, but that those reports didn’t always result in citations to an employer and some were later determined to be outside of OSHA’s jurisdiction.
Inspections
Expectations that the Trump administration would pull back on safety enforcement proved unfounded with the release of data covering the first half of 2017. OSHA opened about 17,500 inspections from Jan. 20 through July 20, agency data showed. That puts the agency on pace to be close to the Obama administration’s projected 35,352 inspections in fiscal 2017. During the same time frame in 2016, OSHA started about 18,500 inspections.
The year-to-year decline was expected because of flat funding, cutbacks to the ranks of OSHA compliance officers, and the agency encouraging area offices to mount a higher number of complicated inspections that take more time to complete.
Mine Safety
A rule on hard rock mine safety inspections would be delayed and modified to address industry concerns under a pair of Trump administration proposals. The Mine Safety and Health Administration (MSHA) has proposed a five-month delay—until March 2018—of a rule (RIN: 1219-AB87) that would require operators to inspect their mines every day before sending in employees to work. That would be the second time the agency has pushed back the start date of the rule, which was finalized Jan. 23.
MSHA also wants to modify the rule to allow operators to send miners into work sites while the safety examinations are being conducted, rather than waiting until they are completed. The exams still would have to be conducted at least once each shift, but operators wouldn’t have to record conditions that are fixed “promptly.”
The mining industry, including companies such as Pennsylvania’s Martin Stone Quarries, has strongly opposed the rule, while miners’ unions have backed it. One of the industry’s central arguments has been that requiring an examination at the start of a shift creates an undue burden on the operator, in part because many mines are too big to be examined quickly. The rule, approved under the Obama administration, initially was supposed to take effect in May, but the Trump administration pushed that back until Oct. 2.
Now MSHA wants to delay it until March 2. Delaying the rule’s start date would give MSHA more time to provide training and to conduct compliance assistance visits at mines nationwide, the agency said in a notice in the Sept. 12 Federal Register (82 Fed. Reg. 42,765). The agency also said it needs more time to train its own inspectors on the rule.
Silica
Though OSHA’s deadline for employers to reduce construction workers’ exposure to breathable silica technically went into effect Sept. 23, OSHA released a memo saying it wouldn’t cite employers just yet.
Employers who are making a good-faith effort to comply with the March 2016 rule will be provided with guidance and not cited for the first 30 days, OSHA said in a memo.
Employers who aren’t making an effort still may be cited. The final rule followed decades of debate on whether to approve tougher requirements on how much airborne silica workers can be exposed to. OSHA expects the regulations to prevent 642 deaths annually and 918 moderate to severe silicosis cases. (RIN:1218-AB70).
The rule also is being challenged in court, with industry leaders saying OSHA doesn’t have good evidence that the new level will be beneficial. A three-judge panel at the U.S. Court of Appeals for the District of Columbia Circuit heard over two hours of arguments Sept. 26 on whether the Occupational Safety and Health Administration showed workers face a significant risk from silica exposure under existing regulations (N. Am.’s Bldg, Trades Unions v. OSHA, D.C. Cir., No. 16-1105, 9/26/17).
The agency initially set June 23 as the compliance deadline for builders, but the Trump administration extended the deadline by three months. For construction, the silica rule sets a permissible exposure limit (PEL) for airborne crystalline silica of 50 micrograms per cubic meter of air (50 μg/m3), 80 percent less than the old construction limit of 250 μg/m3 set in 1971. The 50 microgram limit also applies to general industry and maritime employers, but their compliance deadline comes later on June 23, 2018.
State Developments
State Plans
Several years of pressure from federal OSHA to get states to increase their worker safety fines have met with little success. Of the 22 states enforcing their own workplace safety rules for private employers, only four have average fines that satisfy the federal goal, according to a Bloomberg BNA analysis of recently released data from OSHA.
In fiscal 2016, the average federal OSHA fine for a serious violation was $2,279. The unweighted state average for the same year was $1,670, about $600 below the federal average. That means an employer under federal OSHA jurisdiction in Ohio typically would face a proposed serious violation penalty of $2,279, while a builder in neighboring Michigan would be fined $774, or in Indiana penalized $1,074.
Kevin Beauregard, vice chairman of the Occupational Safety and Health State Plan Association, told Bloomberg BNA Aug. 8 that states continue to believe their effectiveness is best measured by the impact on worker safety and health, not by the size of fines.
The states meeting federal OSHA’s goal of an average fine within at least 25 percent of the federal level were California ($7,294), Kentucky ($3,300), Wyoming ($2,665), and Washington ($2,154). The state with the lowest average fine was Maryland at $657.
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