Silica Rule in Construction Delayed 90 Days

Paving stone saws working with power toolsOn April 6, OSHA announced it has delayed implementation of its new rule for 90 days which, among other things, cuts in half the maximum allowable level of silica dust exposure in the construction industry. The new compliance deadline is now September 23, 2017. OSHA stated that the delay will provide more time to train inspectors and educate contractors and others regarding compliance issues associated with the rule. According to OSHA, approximately 2.3 million workers are exposed to silica in workplaces.

Business, industry, and labor groups are challenging certain portions of the rule in the D.C. Circuit.

As with a number of other new rules, the ultimate fate of them is both a wait-and-see with the new administration as well as the judicial review process.

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Beryllium Rule Proposed to be Delayed (Again)

Beryllium in the Periodic TableThe United States Department of Labor announced another proposed delay of the rule entitled, “Occupational Exposure to Beryllium” from March 21 to May 20.  Beryllium is a material that can cause lung disease.  The proposed delay is intended to give OSHA an opportunity to further review and consider the rule in conformance with a recent White House memorandum which directed the Department of Labor to undertake a review of any new pending regulations and temporarily postpone the date that they would take effect.

The proposed extension of the effective date will not affect the compliance dates of the beryllium rule. Comments regarding the additional proposed extension will be accepted through March 13, 2017.  Comments can be submitted on this proposal at http://www.regulations.gov.

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Post-Accident Drug Testing: Legal or Illegal?

drug test result form with bottle and penIn a prior blog, we discussed OSHA’s recently enacted anti-retaliation rule which says, among other things, that employers cannot deter injury and illness reporting or retaliate against employees for such reporting. The rule itself does not expressly address drug-testing but the preamble makes clear that OSHA believes mandatory post-accident drug testing would be retaliatory.  However, OSHA further stated that mandatory post-accident drug testing to comply with the requirements of a state or federal law or regulation is permissible. Mandatory post-accident testing to receive workers’ compensation discounts is also lawful. In other words, such testing would not be retaliatory because there is a lawful and valid reason that permits or requires such testing.

In the absence of a permissible reason to perform a mandatory post-accident drug test the issue essentially becomes whether the employer had a reasonable basis for drug testing an employee who reported a work-related injury or illness after an accident.  In guidance issued on October 19, 2016, OSHA opined the “central inquiry” will be whether the employer had a reasonable basis for believing that drug use by the reporting employee could have contributed to the injury or illness.  If not, the employee should not be drug tested.  (more…)

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The Rise of OSHA Whistle-Blower Cases

construction worker walking alone in vest and hardhatIn the last blog, we took a look data showing a decrease in OSHA workplace safety and health inspections in 2016.  Although this may be true for safety and health inspections, it is certainly not for whistle-blower investigations which continue to rise.  Some may not be aware that OSHA enforces and investigates claims under 22 different federal whistleblowing laws including, among others, Section 11(c) of the OSH Act, the Safe Drinking Water Act, Sarbanes-Oxley, the Surface Transportation Assistance Act and the Consumer Financial Protection Act of 2010.

OSHA continues to be very active in whistle-blowing prosecution including anti-retaliation cases.  Some of these activities include the following press releases:

  • January 14, 2017 – OSHA issues recommended practices to promote workplace anti-retaliation programs
  • December 14, 2016 – OSHA issues final rule establishing procedures for handling retaliation complaints from workers in the automotive industry
  • October 12, 2016 – OSHA issues final rule establishing procedures for handling retaliation complaints under the Affordable Care Act
  • September 16, 2016 – OSHA issues final rule establishing procedures for handling retaliation complaints under the Seaman’s Protection Act
  • September 15, 2016 – OSHA issues new guidance in settlement approval in whistleblower cases
  • August 16, 2016 – OSHA pilots new, expedited whistleblower review process
  • April 18, 2016 – OSHA issues final rule establishing procedures for handling retaliation complaints under the Food Safety Modernization Act

OSHA’s website also shows aggressive prosecution of retaliation cases affecting many different industries.

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