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June 29, 2016
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By Andrew L. Levy

While workplace safety is a priority for most businesses, defining safety standards means navigating a complex set of OSHA regulations. The task is becoming more daunting, and the stakes are about to increase for missteps. 

The Occupational Safety and Health Administration has taken an increasingly active role under the Obama administration. New regulations issued in spring 2016 will reshape many employers’ health and safety obligations and will make workplace injury and illness data publicly available.    

On March 24, 2016, OSHA issued new rules for silica dust exposure that could cost employers $7.2 billion a year and eliminate about 27,000 jobs over a decade, according to the National Federation of Independent Business. On May 11, 2016, OSHA issued a rule requiring certain employers to submit annual injury and illness information to OSHA electronically so it can be made publically available on the internet.

In addition, significant increases to OSHA penalties have been authorized by Congress, and this summer OSHA is expected to raise the potential penalties for violations by about 80 percent.

A prevalent hazard

Silica is linked to lung cancer and a debilitating pulmonary disease called silicosis. The sand is present in the production of cement, glass, computers, cellphones, paint, hand tools, bricks, cars, ships and airplanes. It also is found at farms and in roads. Overexposure can scar the lungs. About 2.2 million American workers are exposed to the hazard, which contributed to the deaths of 1,437 people from 2001 to 2010.

The “safe” level of silica exposure has been debated since the 1970s. The OSHA permissible exposure limit is 250 micrograms per cubic meter as an eight-hour time-weighted average for construction and shipbuilding, and 100 micrograms for other industries. The new rule reduces the limit to 50 micrograms across all industries.

The U.S. Centers for Disease Control and Prevention for years sought a stronger rule to control silica exposure. OSHA’s 2013 proposed rules were debated for nearly three years as employers argued that the plan should get further study because mortality rates from silica declined significantly over 45 years and the estimated cost to employers would be $7.2 billion annually with no proven safety benefit. Organized labor, however, argued that the PEL should be reduced to as low as 25 micrograms per cubic meter.

OSHA estimates the cost to employers at $1.1 billion per year, with the substantial prevention of deaths and chronic illness outweighing that cost.  

Under the rules, employers would have to vacuum or wet silica dust instead of sweeping it and possibly provide respiratory protection. They would have to develop written exposure-control plans, train employees and offer free medical examinations to highly exposed workers. The construction industry would have to comply by June 23, 2017, with general industry, fracking and maritime compliance by June 23, 2018. 

The rule will be tested in the courts. Industry groups have sued, arguing that the lower PEL is not economically or technologically feasible. Lawsuits by organized labor claim that OSHA has not gone far enough in lowering exposure limits.  

Data to go online

On Jan. 1, 2017, OSHA will require covered employers to electronically submit injury and illness information. The rule applies to employers with 250 or more workers who currently are required to keep such records, and employers with 20 to 249 employees in certain industries with historically high rates of occupational illnesses. 

OSHA plans to post the data it collects at www.osha.gov.

Higher stakes

Under the expected 80 percent increase in penalties for willful workplace violations, OSHA fines could exceed $125,000. Penalties will increase annually with the rate of inflation.  

Many corporate leaders view this move as a heavy-handed way to get their attention and force compliance.

Finding your way

As OSHA works to advance occupational safety without putting the brakes on a snail’s-pace economic recovery, employers would be wise to err on the side of safe rather than sorry. Employment attorneys can provide legal advice on compliance and enforcement matters, helping companies avoid expensive penalties.

Knowing that prevention is better than a cure, to paraphrase British jurist Edward Coke, employers should get ahead of these sweeping changes.

Andrew L. Levy is a member of McNees Wallace & Nurick LLC’s Labor and Employment Group. He can be reached at 717.237.5252 or alevy@mcneeslaw.com

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McNees is a full-service law firm based in central Pennsylvania with more than 130 attorneys representing corporations, associations, institutions and individuals. The firm serves clients worldwide from offices in Harrisburg, Lancaster, State College and Scranton, PA; Columbus, OH; and Washington, D.C. McNees is also a member of the ALFA International Global Legal Network. @McNeeslaw | LinkedIn