Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
On May 14, 2019, OSHA issued a final rule as part of its ongoing Standards Improvement Project (SIP). The final rule is set to go into effect on July 15, 2019. Consistent with the project’s rationale of reducing regulatory burdens while maintaining or enhancing worker safety and health, the updated regulations encompassed in the final rule generally simplify employer efforts both to comply with the agency’s requirements as well as to determine how compliance can be achieved. For example, the rule replaces 31 pages of regulatory text on how to manage hazardous chemicals in the construction industry with a cross reference to an identical standard for general industry. Even with OSHA’s emphasis on regulatory simplification, however, there are several key requirements that employers should closely consider to ensure continued compliance with OSHA standards.
Hearing Loss Injury Reporting
The final rule modifies OSHA’s requirement for reporting work-related injuries with regard to determining and reporting work-related hearing loss. Under section 1904.10(b)(6) of OSHA’s regulations, employers have been excused from reporting an employee’s hearing loss as a work-related injury when a physician or other licensed health care professional has determined the hearing loss neither is work-related nor was significantly aggravated by occupational noise exposure. Until the recent final rule, however, the reporting requirement did not expressly set out any standards for how such medical professionals may go about ruling out work-relatedness. With this final rule, OSHA has now made explicit in section 1904.10(b)(6) that medical professionals must use OSHA’s rules in section 1904.5, general standards for determining the work-relatedness of an injury, in determining whether hearing loss is work-related.
911 Emergency Services
In the final rule, OSHA also updated requirements related to availability of 911 emergency services found in 29 C.F.R. 1926.50(f). When OSHA first promulgated the provision in 1979, it simply required the posting of phone numbers for physicians, hospitals, and ambulances in areas where 911 services were unavailable. But, with 911 services now available almost everywhere across the United States, OSHA in the SIP IV rulemaking identified a different problem. When a caller dials 911 on a landline phone, it is customary for the 911 dispatcher to automatically be provided the caller’s location, which can greatly assist in pinpointing where medical services need to be sent. However, such location-services technology is not yet as ubiquitous on wireless phones. As a result, particularly in distant worksites that lack landline telephones, in the event a caller dials 911 on a wireless phone, neither the caller nor the phone being used might be able to tell the dispatcher where exactly the call is coming from.
Under OSHA’s update to section 1926.50(f), employers in worksites that have 911 services available, but lack readily available landline telephones, must post in a conspicuous location either the worksite’s latitude and longitude, or alternatively, other location-identification information that communicates effectively to employees the worksite’s location. In light of this revision, employers that field employees in out-of-the way worksites should ensure they provide those employees, whether on a bulletin board or another widely trafficked part of the worksite, information on precisely where their site is located.
One further modification is especially significant to employers whose employees are exposed to cotton dust.As exposure to cotton dust creates a risk of developing the respiratory disease byssinosis, OSHA has enforced standards for medical surveillance to determine whether employees exhibit symptoms of that disease.Those standards, however, have not been significantly updated since they were enacted in 1978.Consequently, the final rule brings the medical surveillance requirements into the present, specifically by updating pulmonary function testing requirements based on multiple recognized authorities in such testing.Employers expressly covered by section 1910.1043 should ensure that their testing rubrics adhere to the new standards.
Easing Regulatory Burdens
Finally, it is worth noting that several parts of the new rule increase employer flexibility or otherwise generally reduce regulatory burdens. One such instance concerns OSHA’s standards involving employers providing chest X-rays to employees. Not only has OSHA eliminated the requirements for periodic chest X-rays associated with employee exposure to certain chemicals (due to there being no discernable benefit in reducing either lung cancer risk or mortality), but it has also allowed employers the flexibility to choose digital rather than analog chest X-rays, as well as greater flexibility in the size of X-ray films, regarding exposure to a larger subset of chemicals.
Another example concerns lifelines used standalone as well as with safety belts and lanyards, which previously had to supply a minimum of 5,400 pounds in breaking strength. With improvements in testing methodology, lifelines now only have to supply at least 5,000 pounds of breaking strength.
Finally, as part of the federal government’s ongoing effort to reduce unnecessary use of Social Security numbers in agency systems and programs, OSHA has also deleted SSN-inclusion requirements from 19 different standards. The full OSHA rule can be read here.