Clarifying Representation: The Department of Labor's Newest Regulatory Update
Discover the latest regulatory update by the Department of Labor, aiming to redefine representation during OSHA workplace inspections. This pivotal adjustment could significantly enhance inspection effectiveness and safety outcomes, marking a new ...
On August 29, 2023, the Department of Labor proposed a change to its Representatives of Employers and Employees regulation. According to the U.S. Department of Labor, this rule serves to clarify who can be authorized to serve as a representative during OSHA workplace inspections; stating that the representative may be an employee or someone from a third-party. It also clarifies that third-party representatives are not limited to industrial hygienists or safety engineers, a common misunderstanding of the existing regulation. If the compliance officer deems the individual has skills, knowledge, or experience that would be helpful, they may be granted permission to represent the employee during the inspection. The main goal of this proposed change is to have a more effective inspection conducted to prevent possible injuries (Godinez, 2023).
Should this pass, this would mean that Cornerstone could be a third-party representative for clients who have a scheduled OSHA inspection. Frequently, however, physical OSHA inspections occur without a heads-up from the OSHA officer. In this case, it would be very difficult for a third-party to be involved. That said, in the case that an inspection is scheduled ahead of time, bringing in outside representation would be much easier to coordinate.
Another limiting factor to Cornerstone’s involvement would be whether the client knows what areas of the workplace will be inspected. If the OSHA officer does not provide a scope of what will be inspected, then consulting oversight might be a moot point. That said, Cornerstone can help clients review inspection results and propose recommendations accordingly, regardless of our ability to be involved in the inspection itself.
Ultimately, this change would be a benefit to all parties involved with physical OSHA inspection. It will help make sure the right people are involved and, therefore, will lead to better outcomes.
Godinez, Victoria. “Department of Labor Announces Proposed Changes to Clarify Regulations on Authorized Employee Representation during Workplace Inspections.” Occupational Safety and Health Administration, August 29, 2023. https://www.osha.gov/news/newsreleases/national/08292023.
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OSHA's New National Emphasis Program: Safeguarding Workers in High-Risk Industries from Warehouse Injuries and Heat Hazards
OSHA recently launched an NEP focused on preventing injuries in warehouses, processing facilities, distribution centers, and high-risk retail establishments. Learn more.
National Emphasis Programs, also known as NEPs, are “temporary programs that focus OSHA's resources on particular hazards and high-hazard industries,”(OSHA 2023). On July 11th, 2023, OSHA launched a NEP focused on preventing injuries in warehouses, processing facilities, distribution centers, and high-risk retail establishments. This NEP decision was made based on ten years of injury history in these workplaces. According to the OSHA national news release, warehouses and distribution centers currently employ 1.9 million people, and the injury and illness rate is higher than the overall private industry.
The NEP will last three years and will consist of inspections focused on hazards related to powered industrial vehicle operations, material handling and storage, walking and working surfaces, means of egress, and fire protection. These safety focuses would be considered high-risk, which means if an injury occurs then there is a higher chance it will result in a serious injury or fatality.
The NEP also focuses on other safety topics that are not considered high-risk but attributed to the high injury rate: heat and ergonomic hazards. Additionally, OSHA may expand an inspection’s scope when evidence shows that violations may exist in other areas of the establishment. Overall, these are great areas of focus within these industries. Throughout my five years of being in the warehouse and distribution center sector, sprains and strains have been the most frequently occurring injury type and contributed to around half of all injuries I encountered. OSHA inspections related to ergonomics should look at packaging and loading workstations. The workforce in warehouse and distribution centers tend to be diverse, and one employee’s size and height could be completely different from another. Workstations, however, will be fixed. Heat-related illnesses vary throughout the United States, but states like Arizona tend to have 40-50 work-related fatalities due to heat stress.
For more information, visit: https://www.osha.gov/news/newsreleases/national/07132023#:~:text=%22This%20emphasis%20program%20allows%20OSHA,ensure%20worker%20health%20and%20safety.%22
Tyler Sandy is a Health and Safety Specialist and consults with clients in the area of worker safety. Tyler's experience includes industrial hygiene services, safety training, RCRA as well as OSHA and EPA compliance. His experience includes working with the packaging industry, railroad, welding, warehouse, food and medical waste, chemical manufacturing, and casting.
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Occupational Exposure to Crystalline Silica: Possible Revisions
There are 2.3 million people in the U.S. alone that are exposed to silica at their workplace. Silica can be found in materials like sand, stone, concrete, and mortar which are in products such as glass, pottery, ceramics, brick, and artificial stone. High exposure to silica can result in diseases like Silicosis, lung cancer, chronic obstructive pulmonary disease, and kidney disease. The action level OSHA established is 25 µg/m3 and the permissible exposure limit is 50 µg/m3.
On March 25, 2016, OSHA made a final decision regarding occupational exposure to respirable crystalline silica. The standard established much needed action levels and permissible exposure limits which are calculated based on an eight-hour time-weighted average. The standard, however, did not establish a medical removal provision and only established medical surveillance provisions. Medical removal provisions are important for OSHA recordkeeping because if an employee meets or exceeds the limits during their medical surveillance, the employee must be removed from work. When an employee is removed from work for a medical condition or after surveillance, it is considered a recordable injury/illness due to an employee accumulating days away from work or restricted work. As of January 2023, there is not an established medical removal provision for crystalline silica, but there is a strong possibility this may change this year.
In the Spring of 2022, the U.S. Court of Appeals for the District of Columbia Circuit concluded that OSHA failed to explain why a medical removal provision was not included in the 2016 decision. As a result, a meeting to discuss further consideration was created and deliberation is currently scheduled for May 2023. If the change is made, it would have a major impact on industries across the country.
The importance of adding a medical removal provision, from an OSHA recordkeeping and employee health standpoint, is apparent but this doesn’t include a company’s financial and employee and employer relations point of view. Hypothetically, let’s assume that a company’s grinding operation exposes a dozen associates to a level where they are required to be medically removed from work. The grinding operation would need to be halted completely until certain controls have been made to reduce exposure for associates to continue working. Depending on the severity of the exposure, this could take months or even years to install equipment or create a respiratory protection program that reduces or eliminates exposure. This same company would also have to communicate this information to their employees, who may choose to leave due to unhealthy working conditions.
This potential change is one of many examples of why air sampling monitoring is vital to maintain a safe work environment. Silica monitoring should be completed at least on an annual basis or whenever there are process changes that may affect employees’ level of exposure to silica. In most cases, air sampling monitoring for silica can be completed in a single day with results coming back within the same month. Lastly, whether a medical removal provision is added or not in May 2023, there is a strong likelihood one will be established in the future, so getting a head start on monitoring and, if necessary, creating exposure controls will help long term.
Tyler Sandy is a Health and Safety Specialist and consults with clients in the area of worker safety. Tyler's experience includes industrial hygiene services, safety training, RCRA as well as OSHA and EPA compliance. His experience includes working with the packaging industry, railroad, welding, warehouse, food and medical waste, chemical manufacturing, and casting.