OSHA REVISES HEXAVALENT CHROMIUM REQUIREMENTS LAUNCHES EMPHASIS PROGRAM: The Occupational Safety and Health Administration (OSHA) March 17 finalized a revision to the notification requirements under the February 2006 hexavalent chromium final rulethat requires employers to notify workers of all exposure findings regardless of whether the finding is above the permissible exposure limit.
The revision was implemented by OSHA as the result of a February 2009 court decision by the U.S. Court of Appeals for the Third Circuit. The court directed OSHA to either justify its requirement that employers only have to notify employees when the hexavalent chromium levels exceeded the permissible limit of 5 micrograms per cubic meter of air or to rectify concerns. Instead of lowering the permissible exposure limit to one microgram as suggested, OSHA amended the final rule to require stricter employer reporting requirements. The court-ordered revision will go into effect June 15.
The NEP, designed to encourage compliance with the updated standards, will focus on industries where hexavalent chromium overexposures frequently occur, including construction, and will apply to all businesses, including those with fewer than 10 employees.
The list of targeted sites will be compiled by OSHA’s Directorate of Evaluation and Analysis and supplied to the area offices. Under the NEP, compliance officers are asked to consider workers’ exposure during activities such as regular operations; setup and preparation for regulation operations; cleaning; maintenance; implementation of engineering controls; use of personal protective equipment; medical surveillance programs; and training and education. If the compliance officer notices any safety hazards, the site may be referred to an OSHA inspector for follow up.
PLA’S ENCOURAGED ON FEDERAL CONSTRUCTION PROJECTS UNDER FINAL RULE: The Federal Acquisitions and Regulation (FAR) council April 13 published a final rule implementing President Obama’s February 2009 Executive Order 13502 encouraging federal agencies to impose anti-competitive and costly project labor agreements (PLAs) on federal construction projects.
THIS IS NEW…Under the rule, federal agencies are encouraged, but not required, to impose PLAs on a case by case basis for projects that cost the federal government at least $25 million. Agenciesare given the option to require contractors to submit PLAs at several intervals during the acquisition process: when offers are due, prior to awarding the project to the successful bidder, and after the project has been awarded, forcing the successful bidder to comply with the PLA or lose the project.
Following the publication of the final rule, 2010 ABC National Chairman Jim Elmer, president of James W. Elmer Construction Co., Spokane Wash., chastised the administrationfor encouraging measures that discriminate against more than 85 percent of the construction industry during a time of 25 percent industry unemployment. “This final rule shows that the Obama administration is more concerned with paying back its political allies than putting America’s entire construction workforce back to work,” Elmer said. “We will exhaust every opportunity to challenge this policy, which is effectively a federal government endorsement of union set-asides.”
The rule is scheduled to take effect May 12, but federal agencies may start adopting their own PLA policies at any time. ABC is continuing to meet with and educate federal agencies on the negative effect PLAs have on the construction industry and the taxpayer. The rule does not apply to federally assisted construction projects, although the administration has signaled their intent of expanding the executive order by attaching government-mandated PLA strings to federally assisted construction projects.
OSHA WILL ISSUE ERGONOMICS CITATIONS UNDER GENERAL DUTY CLAUSE: The Occupational Safety and Health Administration (OSHA) Administrator David Michaels April 7 said during a live web chatthat ergonomics hazards will be enforced under OSHA’s general duty clause. The web chat was part of an OSHA outreach effort to discuss its strategic plan, which is supposed to take effect Sept. 30 and be in place until October 2016. “OSHA’s field staff will be looking for ergonomics hazards in their inspections, and we will be providing them with the support and backup they need to enforce under the general duty clause,” Michaels said.
In addition to ergonomics hazards, the web chat also addressed OSHA’s Voluntary Protection Programs (VPP), which received a $3 million funding cut under the fiscal year 2011 budget. Deputy OSHA Administrator Jordan Barab said the agency is considering a fee-based system to fund VPP. The web chat also focused on OSHA’s rulemaking process and permissible exposure limits, both of which OSHA says it plans to reassess.
TITLE VII UPDATE: On February 16, the EEOC announced a case settlement with a Colorado contractor which will result in a payment of approximately $500,000 by the contractor. The female employee who filed the sex discrimination complaint drove a truck for the contractor, batched concrete, dispatched trucks and even acted as a plant manager. After the female employee was assigned to work as a quality control technician, her managers and co-workers were overheard making crude gender-based insults and expressing in very clear terms that “women should not be working in the plant.” Two male co-workers overheard the comments and offered to support the female employee if she wanted to complain. When she did complain to management, she identified the two co-workers who offered to support her. One of the company supervisors told the male co-workers that they were troublemakers and ultimately all three employees were terminated. More female employees have joined the construction industry labor force in recent years and 2010 will be no exception. Construction industry employers need to be pro-active in making sure that the female employees are not discriminated against simply because they are female. Failure to do so may result in very expensive federal court litigation as it did in this case. By Bill Harding, Chapter Attorney