You won’t see it in a press release, but yesterday OSHA announced another 30 day delay in full enforcement of the Silica standard for many employers. Acting Deputy Assistant Secretary Tom Galassi sent a memo to Regional Administrators yesterday outlining the policy that will take effect on September 23:
During the first 30 days of enforcement, OSHA will carefully evaluate good faith efforts taken by employers in their attempts to meet the new construction silica standard. OSHA will render compliance assistance and outreach to assure that covered employers are fully and properly complying with its requirements. Given the novelty of the Table 1 approach, OSHA will pay particular attention to assisting employers in fully and properly implementing the controls in the table. OSHA will assist employers who are making good faith efforts to meet the new requirements to assure understanding and compliance.
If, upon inspection, it appears an employer is not making any efforts to comply, OSHA’s inspection will not only include collection of exposure air monitoring performed in accordance with Agency procedures, but those employers may also be considered for citation. Any proposed citations related to inspections conducted in this time period will require National Office review.
To ensure effective implementation of the new standard, OSHA has developed interim inspection and citation guidance to be released prior to termination of this memorandum. The compliance directive will be finalized thereafter.
So far, OSHA hasn’t issued a press release announcing this policy. You’d have to search for it on OSHA’s webpage, or read a newsletter from Jackson-Lewis law firm, which apparently was notified before anyone else.
The Silica Standard was Already In Effect
Last April, OSHA announced a 90-day delay in enforcement of the silica standard for all employers, from June 23, 2017 to September 23, 2017. Tuesday’s announcement essentially extends that enforcement delay, although limits it only to those employers who, in “good faith” are trying to comply with the requirements of the standard but are unable to reduce exposures below the new permissible exposure limit or are unable to fully comply with “Table 1” that provides more simple instruction about how to comply.
In other words, only if OSHA inspectors can prove that an employer is not meeting the requirements of the standard and is not acting in good faith to meet those requirements, a citation may be issued — but even then, only with National Office review.
Note that the requirements of the standard have been in effect since June 23; only enforcement has been delayed. That means that for the past three months, employers were required to comply with the requirements of the standard. OSHA’s April 6 Press Release, announcing the original delay, stated that even though there would be no enforcement,
OSHA expects employers in the construction industry to continue to take steps either to come into compliance with the new permissible exposure limit, or to implement specific dust controls for certain operations as provided in Table 1 of the standard. Construction employers should also continue to prepare to implement the standard’s other requirements, including exposure assessment, medical surveillance and employee training.
Is There Precedent for This?
Conducting an enforcement program limited only to those employers not acting in good faith is not unprecedented. OSHA, under the Obama administration, issued similar policies on more than one occasion, for example when implementing its new residential fall protection requirements in 2011. The difference here is that there has already been 3 months with no enforcement whatsoever. One would have thought that in the past three months, when employers were legally required to comply with the standard, that good faith criteria would have already been in place.
Note that in other cases, such as the residential fall protection “good faith” enforcement policy, the policy did not apply “in cases of a fatality, catastrophe, or serious injury resulting from a fall during residential construction activities.” That was a good thing, but with a health hazard like silica, where the most severe effects may not be apparent for years or decades, it’s hard to ensure that employees aren’t being exposed to equally deadly — if delayed — exposures.
Generally, OSHA inspectors hate these good faith exemptions because it is difficult to prove that an employer was not acting in good faith. The residential fall protection enforcement delay, unlike the current silica delay, laid out specific criteria for inspectors to use to determine whether an employer was acting in “good faith,” such as “requesting and scheduling an On-site Consultation visit, ordering protective fall equipment for its employees, or performing a documented evaluation of feasible means of abatement.” No such criteria appears in Galassi’s memo.
The bottom line is that except for some hard-to-prove “bad faith” exemptions, what we’re seeing here is simply another 30-day delay in enforcement of the silica standard. Hopefully, this will be the last one.
Meanwhile, as we mentioned yesterday, the good news is that despite this further delay and the lawsuit pushed by the ideologues at the Chamber of Commerce and various business associations, BNA reports that the actual construction industry is ready to protect workers. And I suppose we should be happy that OSHA is not engaged in attempting to weaken the standard as they’re doing with Beryllium.
Meanwhile, let’s hope that most construction employees work for these “good faith” employers and that OSHA’s further delay doesn’t just give too many “bad faith” employers another 30 days to sicken and kill their workers. Lives depend on it.