Washington Update Regulatory Policy

Transcription

1 Washington Update Regulatory Policy Spring Occupational Safety & Health Committee Conference May 1, 2018 Miami, Florida C. Richard Bozek Director, Environmental and Health & Safety Policy Edison Electric Institute

2 Beryllium Update EEI filed Petition for Review of Beryllium Rule Feb Eighth Circuit Other petitioners - 11 Materion Century Aluminum National Association of Home Builders (NAHB) Abrasives industry EEI settled on April 26,

3 Beryllium Settlement Major Points OSHA will change Beryllium Rule = ETA ~May 11, 2018 Direct Final Rule (or companion NPRM) Materials with < 0.1% beryllium by weight = generally carved out - Should exclude most fly ash - Beryllium Work Areas - Dermal Contact - Contaminated with Beryllium or Beryllium-contaminated - Can still transport fly ash for recycling/re-use by truck, so long as fly ash < 0.1% beryllium by weight 3

4 Observations 4

5 Political Leadership at OSHA Assistant Sec. of Labor for OSHA Dep. Assistant Sec. of Labor for OSHA Scott A. Mugno VP of Safety at FedEx Ground Loren E. Sweatt Sr. Policy Advisor to House Ed. & Workforce Committee 5

6 Personnel Changes at OSHA / OSHRC Retirements in Career Leadership Ranks Deputy Assistant Secretary Regional Administrators Directorate Heads & Others Area Directors Hiring freeze + attrition = 119 fewer staff & CSHOs 3-Commissioner OSHRC Panel w/ 2 Republicanappointees for 1 st time in more than a decade 6

7 Regulatory / Deregulatory Agendas Published in July and December 2017 Identifies fed agencies rulemaking priorities Indicates status and prioritization of current rulemakings ID new/cancelled rulemaking efforts 7

8 OSHA Rules Removed or moved to Long Term Actions Vehicle Backing Hazards Workplace Violence Updates to Chemical PELs Emergency Response and Preparedness Comprehensive Combustible Dust Rule PSM Rule Reform Hearing Protection in Construction Infectious Diseases in Healthcare

9 Obstacles to OSHA Deregulation Missing political appointees at OSHA The Sec. may by rule promulgate, modify or revoke any occupational safety/health standard to serve the objectives of the Act - Sec. 6(b)(1) Congress declares it to be its purpose and policy to assure so far as possible every working man and woman safe and healthful working conditions - Sec. 2(b) Occupational safety & health standard means a standard which requires conditions reasonably necessary or appropriate to provide safe or healthful places of employment Sec. 3(8) Existing standard is not reasonably necessary or appropriate? Deregulatory action is not arbitrary and capricious?

10 EEI - OSHA UPDATE May 1, 2018 Presented by: Melissa A. Bailey (Washington, D.C.) melissa.bailey@odnss.com ogletreedeakins.com 2016, Ogletree, Deakins, Nash, Smoak & Stewart, P.C.

11 Agenda Rulemaking (not much to say ) Multi-Employer Liability Do the /Subpart V host/contractor communication provisions change an employer s obligations under the Multi-Employer Citation Policy? How? How can the host employer best protect itself from OSHA liability? What do the communication provisions mean for contractors? What is the practical impact? 11

12 Rulemaking Agenda Final Rules Silica General Industry compliance dates: June 23, 2018; medical exams as of June 23, 2020 Construction compliance dates: September 23, 2017; compliance with methods of sample analysis provisions by June 23, 2018 OSHA vigorously defended all legal challenges to the standard complete OSHA victory Citations alleging violations of the construction standard are being issued (and contested) 12

13 Rulemaking Agenda Final Rules Recordkeeping Electronic submission of OSHA 300 Logs and 301 forms Employers prohibited from retaliating against employees who report injuries implications for discipline for safety rule violations, post-accident drug testing and safety incentive programs OSHA now seems to be walking it all back 13

14 Rulemaking Agenda Final Rules Employers submitted OSHA 300A forms electronically by December 15, forms submitted by July 1, forms submitted by March 2, 2019 Fall 2017 Agenda: OSHA proposes no longer requiring submission of 300 Logs and 301 forms Gold mine for plaintiff s lawyers and union organizers OSHA is foregoing a big opportunity this is the only way to get a corporate picture of injury and illness experience Could have used this data to focus inspections (and issue willful violations) 14

15 Rulemaking Agenda Final Rules Anti-Retaliation provisions Discipline for violations of safety rules: Was the employee disciplined because he or she was injured, or because of the violation? Post-accident drug testing: Is there a reasonable possibility that the accident could have been related to drug use? Or is the employer drug testing only to punish the injured employee? Safety incentive programs: Did an employee miss out on a bonus or incentive because he or she was injured? 15

16 Rulemaking Agenda Final Rules Anti-Retaliation provisions court challenges Lawsuits in Oklahoma and Texas Does OSHA have the authority to create a new remedy for employees when Section 11(c) is in the OSH Act? Isn t that Congress s job? OSHA may propose amendments to the provisions perhaps as part of a settlement agreement? or could eliminate them all together 16

17 Rulemaking Agenda Final Rules Fall Protection Significant changes to infrastructure within power plants Examples: Height of guardrails Phase out of ladder cages Required installation of swing gates in ladderways on platforms General Duty Clause -type provision within the standard: Walking-working surfaces are maintained free of hazards such as sharp or protruding objects, loose boards, corrosion, leaks, spills, snow, and ice 17

18 Rulemaking Agenda What Will We See? My prediction? Nothing 17 months into President Trump s term no Assistant Secretary President Trump has consistently talked about de-regulation Nothing in the semi-annual agenda indicates significant rulemaking 18

19 OSHA Liability on Multi-Employer Worksites 19

20 Multi-Employer Worksites: The History Historically, employers took a hands off approach with employees of contractors Host employers wanted to avoid joint employer status Use of contractors was more limited and fell more clearly into the independent contractor realm Started to change in the mid/late1990s. Why? Chemical manufacturing/refining Process Safety Management provisions mandate host/contractor communication OSHA s Multi-Employer Citation Policy mandated involvement from host employers to avoid OSHA liability General sense from host employers: We are better off being involved so that we can prevent accidents 20

21 Multi-Employer Worksites: The History What changed? Greater scrutiny of contractor safety records and injury and illness rates Development of contractor safety manuals containing policies/practices that contractor employees must follow (e.g. contractors must use a particular type of PPE, treat certain spaces as permit spaces, etc.) Increased oversight of work contractor controls the means and methods, but host employers will do more to ensure those means and methods are safe 21

22 Multi-Employer Worksites: The History What difference has this made? Civil liability? Probably none on a practical level because of indemnity provisions OSHA liability? More involvement from host employers has likely meant less OSHA liability for them Actual safety? I think better host/contractor communications have made for a safer work environment 22

23 What Is the Current State of Play? Refresher Section /Subpart V host/contractor provisions Among the most contentious Performance language allows flexibility in compliance little consistency in the industry (which is not a bad thing) Methods of compliance may include: o o o o o o Telephone call or text message Bid package or contract Orientation session or meeting Websites or computer programs Tagging/maps/other systems with data to interpret them 23

24 What Is the Current State of Play? Refresher Section /Subpart V Characteristics o o o o o Nominal voltages of lines and equipment Maximum switching-transient voltages Hazardous induced voltages Protective grounds and equipment grounding conductors Circuit and equipment locations (including supply lines, communication lines and fire-protective signaling circuits) 24

25 What Is the Current State of Play? Refresher Section /Subpart V Conditions o o o The condition of protective grounds and equipment grounding conductors The condition of poles Environmental conditions relating to safety Host employers need consult only existing records Host employers need not inspect the worksite to the information Environmental conditions limited to information that both affect[s] worker safety and relate[s] to electric lines and equipment 25

26 What Is the Current State of Play? Refresher Section /Subpart V Design/Operation o o Information contractor needs to make assessments for MADs and incident energies Host may elect to set MADs and PPE requirements rather than providing information, but must provide basis for conclusions Host must develop this information if unknown 26

27 What Is the Current State of Play? Refresher Section /Subpart V Other Any other information about the design and operation of the host employer's installation that is known by the host employer, that the contract employer requests, and that is related to the protection of the contract employer's employees What does this mean? Are contractors asking for information under this provision? 27

28 What Is the Current State of Play? Refresher Why did OSHA include these provisions? Information is power Providing contractors with this information allows them to adjust their work methods to avoid hazards All parties do not have to follow the same procedures (e.g. PRCS entries, hazard communication), but everyone has to understand the procedures that are being used Lessons from the PSM world: Contractor accidents result from lack of information 28

29 Multi-Employer OSHA Liability How does compliance with these provisions affect OSHA liability? To some degree, it really doesn t OSHA was clear in the preamble that the host-contractor provisions apply in addition to the general background responsibilities [controlling] employers have 79 Fed. Reg. at 20354;

30 Multi-Employer OSHA Liability What are the duties of the host employer under the Multi-Employer Citation Policy? Exercise reasonable care to prevent and detect violations Generally, if the host does this, then could not have had knowledge of the violation Employer is controlling either by contract or through general supervision of the worksite Host almost always has the ability to kick a contractor off the site for not working safely that host is a controlling employer 30

31 Multi-Employer OSHA Liability How does the host exercise reasonable care? Primary method: Inspections of the contractor s work The extent of the measures that a controlling employer must implement to satisfy this duty of reasonable care is less than what is required of an employer with respect to protecting its own employees. This means that the controlling employer is not normally required to inspect for hazards as frequently or to have the same level of knowledge of the applicable standards or of trade expertise as the employer it has hired. 31

32 Multi-Employer OSHA Liability Factors in determining how closely to monitor the contractor: The scale of the project The nature and pace of the work, including the frequency with which the number or types of hazards change as the work progresses How much the controlling employer knows both about the safety history and safety practices of the employer it controls and about that employer's level of expertise 32

33 Multi-Employer OSHA Liability Factors More frequent inspections are normally needed if the controlling employer knows that the other employer has a history of noncompliance. Greater inspection frequency may also be needed, especially at the beginning of the project, if the controlling employer had never before worked with this other employer and does not know its compliance history. Less frequent inspections may be appropriate where the controlling employer sees strong indications that the other employer has implemented effective safety and health efforts ; consistently high level of compliance ; effective, graduated system of enforcement for non-compliance coupled with regular jobsite safety meetings and safety training. 33

34 Multi-Employer OSHA Liability Host employer has three obligations to show reasonable care : Conduct periodic inspections with appropriate frequency Implement an effective system for requiring hazards to be abated once identified Apply an effective graduated system of enforcement and follow-up inspections 34

35 Multi-Employer OSHA Liability What has this meant for the industry? Focus on the citation history and injury rate of the contractor before hire Allows the host employer to argue that it knew the contractor was safe based on data Is that true? Yes: If an employer accepts OSHA violations, clear indication that an unsafe condition was present; rates are a good indicator of whether a worksite is safe No: Employers accept OSHA violations for many reasons; one big injury can impact rates dramatically; focus on these issues drives work to smaller contractors that are not as safe 35

36 Multi-Employer OSHA Liability What has this meant for the industry? More inspections by host? May depend on the nature of the work More self-auditing by contractors? Yes Root cause investigations of contractor incidents? Yes Joint investigations May raise privilege issues

37 Multi-Employer OSHA Liability How do the information exchange provisions affect this? Not aware of any citations issued under the new provisions Are contractors communicating to OSHA that they have not gotten adequate information? Are the host contractor s duties under the Multi-Employer Citation Policy mitigated by the host/contractor communication provisions? Probably

38 Multi-Employer OSHA Liability Practical Tips Hosts Be able to show exactly how you communicated the information required under the host/contractor communication provisions Consider how this information is communicated in emergencies Documentation is not required Submit written information in a bid package or during an orientation/scope session Provide contractor with a single source of contact for additional requests for information

39 Multi-Employer OSHA Liability Practical Tips Hosts How does this affect your inspection frequency under the Multi-Employer Citation Policy? Message to OSHA/plaintiff: We provide the information the contractor needed to determine a safe way to do the work The contractor is the expert not us Likely to be a significant difference in inspection frequency for generation work as opposed to T&D work

40 Multi-Employer OSHA Liability Practical Tips Contractors Are you asking the right questions? In the wake of an accident or inspection, you may want to say that the host never provided you with information about something in the system that was different Did you ask? What history do you have of reporting unexpected conditions to the host in the absence of an inspection or accident? How do you deal with privilege issues in root cause investigations?

41 Multi-Employer OSHA Liability Contractor is typically the exposing employer under the Multi-Employer Citation Policy More difficult to avoid OSHA liability BUT OSHA does have to prove contractor employer knew or should have known about the violative condition How do the host/contractor communication provisions impact that element of the case? How do you deal with privilege issues in root cause investigations?

42 The Hensel Phelps Case in the Fifth Circuit Employers in states within the Fifth Circuit (Texas, Louisiana and Mississippi) have not been subject to OSHA s multi-employer liability policy The Fifth Circuit held the OSH Act does not provide for such liability that OSHA cannot prosecute controlling employers for failing to prevent violations by subcontractors affecting only the subcontractors employees Other circuits have disagreed and have upheld OSHA s position OSHA is now challenging the Fifth Circuit s position in a case called Hensel Phelps. The case has attracted amicus briefs (including one by this firm) Fifth Circuit adherence to its 1981 decision could set up a Supreme Court case to resolve the conflict. It is a case to watch

43 Questions?

44 Thank You Melissa A. Bailey Ogletree Deakins, Nash, Smoak & Stewart, P.C K Street, N.W. Suite 1000 Washington, DC Phone: melissa.bailey@ogletreedeakins.com 44