As previously reported in Babst Calland’s November 2015 Employment Bulletin, a little-noticed provision in the recent federal budget permits the Occupational Safety and Health Administration (“OSHA”) to raise its monetary penalties by nearly 80%. The increase in fines – the first since 1990 – will take effect on August 1, 2016. However, because OSHA has six months to issue a citation after an inspection, the increased penalties could be applied to inspections occurring now.
More information about the OSHA fine increases as well as other employment related issues that impact the construction industry may be found in Babst Calland’s regularly issued newsletters as well as on this blog.
Beginning January 1, 2015, there was a change to what covered employers are required to report to the Occupational Safety and Health Administration (“OSHA”). Employers will now be required to report within 24 hours: (1) all in-patient hospitalizations (even for just one employee, as opposed to the current 3-employee hospitalization rule); (2) amputations, and (iii) losses of an eye. The 24 hour notice begins when the employer first learned of the work related incident.
In-patient hospitalization is defined as “formal admission to the impatient service of a hospital or clinic for care or treatment.” Employers do not have to report an inpatient hospitalization if it was for diagnostic testing or observation only. Additionally, employers do not have to report the events listed above if the event resulted from a motor vehicle accident on a public street or highway. Employers must only report the event if it occurred in a construction work zone. Read more about the new changes and reporting requirements here.
On September 10, 2010, Frederick T. Prinz, an New Jersey based Occupational Safety and Health Administration (“OSHA”) instructor pleaded guilty to selling false OSHA 30 Hour cards to New Jersey construction workers. Mr. Pritz’s actions qualify as a felony, and he now faces up to five years in prison and as much as a $250,000 fine. Court documents indicate that Mr. Printz will receive his sentence on December 10, 2014.
An OSHA 30 Hour card certifies that the card holders completed 30 hours of OSHA regulations and standards training and may only be issued by a certified OSHA instructor to individuals who complete one of OSHA’s Outreach Training Program classes and pass a test. According to documents filed by prosecutors with the United States Federal Court for the District of New Jersey, Mr. Frintz became certified to conduct OSHA Outreach Training Program classes and then, for a period spanning February 2011 through July 28, 2012, Mr. Prinz issued authentic OSHA 30 Hour cards to construction workers in New Jersey that had neither taken nor passed the OSHA required safety courses. The Philadelphia Business Times has reported that Mr. Frintz sold more than 100 the false OSHA 30 Hour cards, charging a fee between $150 to $250 for each card.
The Construction Industry Safety Coalition, an organization representing twenty-five different construction trade associations, recently issued the following statement regarding the rule on Crystalline Silica proposed by the Occupational Safety and Health Administration (“OSHA”):
After an exhaustive analysis that involved hundreds of construction safety professionals, builders, construction managers and specialty trade contractors representing virtually every facet on the industry, it is our conclusion that the administration’s proposed new silica rule is significantly flawed and will do little to improve workplace health or safety. Specifically, the proposed rule sets a silica exposure standard that cannot be accurately measured or protected against with existing equipment and includes a series of data errors that undermine many of the rule’s basic assumptions.
The proposed rule’s new silica exposure limit is virtually impossible to accurately measure or protect against using existing technology. For example, commercially-available dust collection technology is not capable by itself of protecting workers from the rule’s new silica exposure limit. A limitation the agency appears to acknowledge in its additional requirement that workers also wear respirators, something that would not be necessary if the dust collection technology was effective.
Even more troubling, the proposal is rife with errors and inaccurate data that call into question the entire rulemaking process. Agency officials, for example, omitted 1.5 million construction workers from its assessment of the size of the affected workforce. The agency also did not consider the broad range of tasks and variety of settings and environments in which construction occurs. And the agency’s assessment of the rule’s cost was off by a factor of four.
Given the lack of scientific explanation justifying the new exposure limits, the many contradictions between the rule and the realities faced in the construction industry, and the fact that agency officials made significant errors in the basic data the rule is based on, we are urging the administration to withdraw this proposed rule. We strongly urge agency officials to work with us and employee groups to craft a silica measure that will build upon the work all of us have done to reduce silica-related deaths by 93 percent during the past three decades.
Contemporaneous with the above statement, the Construction Industry Safety Coalition filed its comments to OSHA’s proposed Crystalline Silica rule, which are available here. Additional information about OSHA’s proposed rule, including the full text of the rule is available on OSHA’s website.