OSHA watch

No extension for groups opposed silica rule

A federal appeals court has denied a request by industry groups challenging the silica rule for a 60-day extension to give the Trump administration time to evaluate the rule. A coalition of trade associations urged the U.S. Court of Appeals for the District of Columbia Circuit to vacate the rule, but the D. C. appeals court denied the extension request without explanation.

Safety citations stand although employee violated safety rules

The Seventh Circuit Court of Appeals in Chicago denied an appeal by Dana Container Inc. of a finding by the Occupational Safety and Health Review Commission upholding citations issued against the cleaning and transportation company when a worker was exposed to toxic fumes. According to the ruling, the employee disregarded safety rules by entering a cleaning tank without attaching himself to a retrieval device or following the entry permit procedures – in violation of OSHA rules – and had to be rescued by the local fire department after being found unconscious.

The appeals court agreed with the commission that there was a failure to enforce Dana’s safety program, citing evidence of permit deficiencies and a lack of disciplinary or follow up action.

Allowing union reps on inspections at nonunionized workplaces challenged

In 2013, a standard interpretation letter allowed employees at nonunion workplaces to designate nonemployees such as union representatives to participate in so-called “walkaround” inspections. The Washington-based National Federation of Independent Business (NFIB) employer group challenged the interpretation in September 2016 in U.S. District Court in Dallas.

There were two parts to their argument:

  1. The agency lacked the authority to allow union representatives to accompany its compliance officers at nonunion workforces.
  2. It constituted a rule change made in violation of the Administrative Procedure Act (APA), which mandates a public notice and comment period.

In a split decision, the judge denied part of the motion to dismiss by allowing the APA claim to move forward. According to an article in Business Insurance, OSHA’s union rep inspection policy under fire, legal experts say it is highly likely that the administration will rescind the interpretation letter and/or stop defending the lawsuit.

House passes resolution to overturn ‘ongoing obligation’ recordkeeping rule

The U.S. House of Representatives passed a resolution to overturn a ruling clarifying employers’ “ongoing obligation” to make and maintain accurate records of work-related injury and illness data. The so-called “Volks” rule increased the threshold for citing employer violations from six months to up to five year. The rule, which became effective Jan. 18, was OSHA’s attempt to affirm a long-held agency stance that has been upheld by the Occupational Safety and Health Review Commission in cases dating back to 1993, but was rejected by the U.S. Court of Appeals for the District of Columbia Circuit in 2012 in AKM L.L.C. v. Secretary of Labor (Volks).

Requirements for Outreach Trainer Program instructors revised

The outreach program trains workers and supervisors to recognize and prevent safety and health hazards on the job, and to understand worker rights and employer responsibilities. Requirements for authorized trainers in the program have been revised. Changes include updating and clarifying student contact hours, replacement card procedures, the Trainer Code of Conduct and more. These new requirements and procedures are effective April 1.

For more information, see the Outreach Training Program webpage.

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