The past six months have seen plenty of activity from the Occupational Safety and Health Administration (OSHA). The following recaps the developments affecting the construction industry. As each changes the regulatory landscape, construction professionals should take heed to ensure compliance initiatives stay up to date.

The Fifth Circuit Joins the Club of Jurisdictions Enforcing “Multi-Employer Worksite Doctrine” 

Although OSHA appears to have nationwide authority, certain parts of the regulatory scheme do not apply in certain regions, including its policy of multi-employer liability. Under this policy, OSHA has asserted the authority to cite multiple parties for the same act based on its interpretation of its own regulations. Typically, this occurs on a construction site where, for example, a roofing subcontractor violates a fall-protection regulation, and the general contractor notices it but fails to act. Depending on the circumstances, OSHA can cite both the sub and the GC. Some federal courts, however, have rejected this approach because it lacks support in the regulations’ express language. Joining most other regions in the country, however, the Fifth Circuit ruled in January in Acosta v. Hensel Phelps Constr. Co., No. 17-60543 (5th Cir. Aug. 4, 2017) that because OSHA made a reasonable interpretation of the Occupational Safety and Health (OSH) Act in creating the multi-employer liability policy, the court must defer to that interpretation. This means construction safety professionals should assume the policy applies and continue to take reasonable measures to ensure all parties on a project adhere to safety standards.

The New Crane Operation Rule

Seeking to increase crane safety, OSHA finalized a rule introducing a new regulatory framework for operator qualifications. Employers are now obligated to ensure that operators have standard certification or licensing, proper training, and documented evaluation. Generally, operators must have a license from a state or local government or certification from an accredited testing organization, and such license or certification can be by crane type or by crane type and capacity. Employers must provide operators ongoing training necessary to perform assigned work or operate new equipment. Not only must employers routinely assess operator performance, but they must also document those evaluations. This rule went into effect December 9, 2018, except for the evaluation and documentation requirement, which became effective February 7, 2019.

Less is More: Reduced Electronic Reporting of Workplace Injuries and Illnesses

In early 2018, OSHA announced an informal policy stating that for electronically submitted workplace illness and injury data, OSHA would not accept information from Forms 300 (injury or illness report) and 301 (illness or injury log). OSHA made this change in response to concerns that collecting information on these forms would lead to publicizing personally identifiable information. The policy revision meant that establishments with 250 or more employees needed to submit electronically only the information from Form 300A (yearly summary data). OSHA formalized this policy through the rulemaking process, and the final rule went into effect on January 24, 2019. Although the revised rule fended off privacy concerns, it may face legal challenges on the ground that the underlying privacy issues carry minimal risk at the expense of losing valuable detailed electronic data that could help promote and advance workplace safety.

Powered Industrial Trucks

Recognizing that the rules for powered industrial trucks date back almost fifty years, OSHA has begun investigating their appropriateness in light of technological developments and changes in industry consensus standards. “Powered industrial trucks” refers to forklifts, forktrucks, tractors, platform lifttrucks, motorized hand trucks, and other specialized industrial trucks powered by an electrical motor or an internal combustion engine.

As part of this investigation, OSHA is seeking from construction industry professionals information about these trucks, including:

  • Their types, age, and usage
  • Their maintenance and retrofitting
  • Ideas for regulating older trucks
  • The types of accidents and injuries associated with their operation
  • Costs and benefits of retrofitting the machines with safety features

The information provided will guide OSHA in determining whether and how it will proceed with the rulemaking process to update existing regulations for these vehicles.

OSHA Expands Post Accident Drug Testing

Ending years of confusion, OSHA revised its rules for employee drug testing after a workplace injury. Certain OSHA memoranda suggested that an employer policy requiring post-incident drug testing could violate OSHA’s 2016 rule prohibiting retaliation against employees who report workplace injuries or illnesses. Employers could administer drug testing only where the employer had “reasonable probability” that an incident involved drugs or alcohol. The rationale was that an automatic drug testing requirement would have the proverbial “chilling effect” and discourage employees from reporting incidents. Further, recognizing the confusion in that standard, OSHA revised its policy on October 11, 2018 to permit any post-incident drug testing so long as it is not done to punish reporting workplace safety incidents.

OSHA Responds Forcefully to News of Forged Training Cards

OSHA reacted swiftly and unequivocally to the news that a New Jersey man holding himself out as authorized to provide OSHA safety training had pleaded guilty to issuing over 100 fake or fraudulent certification cards for completing OSHA 10-hour or OSHA 30-hour courses. OSHA publicly condemned the practice noting that such cards “undermined” its program and “failed to protect workers on the job.” Perhaps not coincidentally, in OSHA’s recent revisions to its Outreach Training Program it updated its trainer code of conduct and removed the grace period for when trainers’ certification cards expire.

Continued Review for the Beryllium Standard

On January 9, 2017, OSHA issued a new final rule setting the permissible exposure limit of beryllium at 0.2 micrograms per cubic meter. A legal challenge to that standard argued that the rule lacked specificity and led to interpretations that resulted in unintended enforcement. To resolve this litigation, OSHA agreed to modify the rule and initiated the rulemaking process. The comment period for the newer, more detailed rule recently ended, so the final rule is expected soon.

Increased Safety, but a New Danger Emerges

OSHA announced towards the end of 2018 that 2017 collected data revealed decreased workplace fatalities nationwide, with the rate dropping from 3.7% to 3.6%. Despite this overall increase in workplace safety, for the fifth year in a row, OSHA saw a 25% increase in unintentional fatal overdoses from nonmedical workplace alcohol and drug use, including opioids.

Each of these developments has financial and operational impacts for construction industry professionals and businesses. More importantly, they raise new and complex compliance issues. For questions or further guidance, please do not hesitate to contact legal counsel.

This article originally appeared in the Pennsylvania Builders Exchange Insider E-Newsletter.