In September of 2017, OSHA’s new standard on exposure to respirable crystalline silica went into effect in the construction industry. The rule lowered the allowable exposure to the harmful substance to 50 micrograms per cubic meter, a measurement that we’re all familiar with [/sarcasm]. After a full year of enforcement, OSHA is considering making a change to the rule.
Read moreOSHA Clarifies Position on Post-Incident Drug Testing and Workplace Safety Incentive Programs
A 2016 OSHA final rule that requires construction companies to submit electronic injury and illness data on a yearly basis has been fraught with controversy since its release. Over the summer, OSHA proposed rollbacks on additional requirements that large companies with 250 or more employees had to follow after industry pushback. Most recently, the administration has clarified their position on post-incident drug testing and workplace incentive programs, which many organizations believed was unclear under the final rule.
In the original final rule, found in 29 C.F.R. § 1904.35, OSHA deemed that certain post-incident drug testing and workplace safety incentive programs could end up being unlawfully retaliatory against their employees. The belief was that, if done the incorrect way, those policies could end up discouraging incidents from being reported due to an employee’s fear of punishment.
Industry groups, including ABC, have long fought against that line of thinking, explaining that, without proper clarification from OSHA, the rule could make jobsites much less safe. On October 11, OSHA issued an official memorandum which explains that the Department does not prohibit workplace safety incentive programs or post-incident drug testing.
Per the memorandum, “The Department believes that many employers who implement safety incentive programs and/or conduct post-incident drug testing do so to promote workplace safety and health. In addition, evidence that the employer consistently enforces legitimate work rules (whether or not an injury or illness is reported) would demonstrate that the employer is serious about creating a culture of safety, not just the appearance of reducing rates. Action taken under a safety incentive program or post-incident drug testing policy would only violate 29 C.F.R. § 1904.35(b)(1)(iv) if the employer took the action to penalize an employee for reporting a work-related injury or illness rather than for the legitimate purpose of promoting workplace safety and health.”
With regards to safety based incentive programs, OSHA states that incentive program rewards for reporting hazards and near misses is always permissible. For incident rate based incentive programs which award a prize or bonus at the end of the time frame, the employer has to create an environment that does not discourage employees from reporting incidents. The Department offered suggestions for counterbalancing any negative effects a rate based incentive could cause:
an incentive program that rewards employees for identifying unsafe conditions in the workplace;
a training program for all employees to reinforce reporting rights and responsibilities and emphasizes the employer’s non-retaliation policy;
a mechanism for accurately evaluating employees’ willingness to report injuries and illnesses.
OSHA also mentions that most instances of drug testing are permissible under 1904.35(b)(1)(iv), including:
Random drug testing.
Drug testing unrelated to the reporting of a work-related injury or illness.
Drug testing under a state workers’ compensation law.
Drug testing under other federal law, such as a U.S. Department of Transportation rule.
Drug testing to evaluate the root cause of a workplace incident that harmed or could have harmed employees. If the employer chooses to use drug testing to investigate the incident, the employer should test all employees whose conduct could have contributed to the incident, not just employees who reported injuries.
Full story: Clarification of OSHA’s Position on Workplace Safety Incentive Programs and Post-Incident Drug Testing Under 29 C.F.R. § 1904.35(b)(1)(iv) | US DOL
Do You Know What These Important Contract Terms Mean?
Three common construction contract provisions—hold harmless, indemnification, and duty to defend—are often found together taking a form something like this:
Read moreFederal Government Announces Plans to Rollback or Revise Several Regulations Affecting Construction
The Trump administration recently released its Spring 2018 Unified Agenda of Regulatory and Deregulatory Actions and, contained within it, is a series of regulations that federal agencies plan to either amend or eliminate.
Read moreOSHA Proposes Rule to Alter, Enforce Long Delayed Crane Operator Qualifications
Last November, OSHA issued a final rule that would finally allow them to enforce language, which has been in their standards since 2010, requiring construction crane operators to be formally qualified to operate the equipment. The first day of enforcement for that rule had been set for November 10, 2018, but the agency has recently proposed a new rule that would pull back some of the initial requirements.
Read moreOSHA Enforcement of New Beryllium Exposure Standard is Now in Effect for Construction Industry
In March, OSHA announced that they would be enforcing their previously delayed beryllium exposure limit for the construction industry on May 11, 2018. The agency has recently confirmed that enforcement date in a memorandum on May 9, 2018.
Read moreReport: First 6 Months OSHA Silica Regulations Yields 116 Violations
OSHA newer and more stringent regulations regarding employee’s exposure to respirable crystalline silica officially went into effect on September 23, 2017. The new reduced the permissible exposure limit of the substance, which is found mostly in products containing sand (like concrete, mortar, and brick), from 250 micrograms per cubic meter of air down to 50 micrograms per cubic meter of air averaged over an 8 hour shift.
Read moreOSHA: Majority of Companies Failed to Submit OSHA 300A Log Before Deadline
If your company did not electronically submitted its 2016 OSHA 300A injury and illness log to OSHA before December 31, 2017, they could be facing an other-than-serious violation with a maximum penalty of $12,934. We tried to warn you, and warn you, and warn you again.
Read moreOSHA Sets Enforcement Date for New Beryllium Exposure Limit in Construction
First announced in January 2017, OSHA’s new beryllium exposure limit for construction workers was originally supposed to be in full effect on March 12, 2018. The administration just announced last Friday that the new enforcement date for the rule will be May 11, 2018.
Read moreReminder: Employers Must Post 2017 Injury and Illness Summary by February 1
OSHA gives employees many rights in the workplace and employers many responsibilities. One of those is the employee’s right to see the company’s OSHA 300 Injury and Illness Summary Log and the employer’s responsibility to post it.
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Last summer, Hilti announced that they had developed their first exoskeleton designed for construction tradespeople in a partnership with Ottobuck, a prosthetics, orthotics, and exoskeleton provider. Earlier this month, Hilti officially released the exoskeleton, announced more details, and published its retail price on their website.