New OSHA regulations for construction industry

On March 25, 2016, the Occupational Safety and Health Administration (“OSHA”) published final regulations on reducing employee exposure to respirable crystalline silica (“RCS”). The new regulations require employers in the construction industry to implement specified engineering and work practice controls or assess and confirm that employee exposure to RCS will not exceed a permissible exposure limit ("PEL") of 50 micrograms per cubic meter of air (50 μg/m3) as an 8-hour time-weighted average. The new regulations become effective on June 23, 2016 and employers in the construction industry must comply with the regulations by June 23, 2017.1

General compliance requirements

The new regulations apply to all employers with employees exposed to RCS above 25 μg/m3 under any foreseeable conditions.2 There are no exceptions for small or mid-size businesses under OSHA’s new regulations. The new 50 μg/m3 PEL is half of the current 100 μg/m3 PEL from prior regulations but twice as permitting as the 25 μg/m3 PEL previously proposed by OSHA. Although OSHA does not regulate RCS created by self-employed workers, employers are nonetheless required to protect their own employees from RCS exposure on the worksite.

In addition to the 50 μg/m3 PEL, employers must:

• Perform regular worksite exposure assessments with stringent laboratory analysis requirements;
• Demarcate and restrict access to “regulated areas” where RCS exposure may exceed the PEL;
• Provide adequate respiratory protection for employees when RCS exposure may exceed the PEL;
• Establish a respiratory protection program that is administered by a trained program administrator;
• Offer cost-free continual medical surveillance for employees;
• Implement a hazard communication program that notifies employees of the dangers of RCS and the location of regulated areas, and provides employee education that ensures employees can demonstrate knowledge of the risks of RCS exposure, the new regulations, and their rights under the regulations;
• Follow specific housekeeping limitations to limit secondary exposure to RCS; and
• Institute a written exposure control plan that is implemented, monitored, and modified by competent personnel.

Specified engineering and work practice controls for the construction industry

OSHA’s new regulations permit employers in the construction industry to follow specified engineering and work practice controls in place of limiting PEL to 50 μg/m3. The specified controls are incorporated into the regulations and specify particular methods for minimizing RCS exposure during certain operations. When OSHA’s specified controls are followed, employers are not required to perform worksite exposure assessments or demarcate restricted areas. Employers must, however, provide adequate respiratory protection as indicated by OSHA’s specified controls for certain operations.

OSHA’s specified controls generally involve enclosed areas, wet methods to minimize dust, and enclosed cabs or booths for machinery. If an employer in the construction industry does not, or cannot, implement OSHA’s specified controls, or there are no specified controls for a particular operation, the employer is subject to the general 50 μg/m3 PEL requirement. Irrespective of specified controls, employers in the construction industry must comply with the remaining provisions of the regulations, including medical surveillance, hazard communication, housekeeping, and the implementation of a written exposure control plan.

Exposure assessments and regulated areas

Employers in the construction industry that do not comply with OSHA’s specified controls must assess employee exposure to RCS at or above the action level of 25 μg/m3 in accordance with stringent laboratory sample analysis parameters. The compliance deadline for conducting laboratory sample analysis, however, has been extended by OSHA until June 23, 2018.

Assessments must be performed on each employee or through scheduled monitoring of sample areas that are expected to have the highest incidence of RCS. Employees are entitled to the results of exposure assessments within 15 working days after completion and employers must allow employees or their representatives to observe the employer’s exposure assessments. Employers must also provide employees written notice of corrective actions anytime an assessment indicates exposure levels above the PEL.

Employers not complying with OSHA’s specified controls must demarcate and restrict access to “regulated areas” where exposure assessments indicate RCS may exceed the PEL. The only people authorized to enter a regulated area are employees that are required to be present for their work duties, employees or an employee’s representative accessing the regulated area to observe the employer’s RSC assessment procedures, and agents of OSHA. Employers must provide and require authorized persons to use respirators in regulated areas.

Respiratory protection

When respiratory protection is required, the new regulations require employers to comply with the respiratory protection requirements of 29 C.F.R. § 1910.134. Employers must establish and maintain a respiratory protection program that: (a) is written; (b) includes worksite-specific procedures and elements for required respirator use; and (c) is administered by a trained program administrator.3 When respiratory protection is indicated by OSHA’s specified controls, employers must also select respirators in accordance with assigned protection factors that correspond with adequate respirator options.

Written exposure control plan

Employers must create and implement a written exposure control plan. Exposure control plans were not presented by OSHA in prior proposed regulations. Employers in the construction industry must also employ a designated individual who is capable of identifying crystalline silica hazards in the workplace and who possesses the authority to take corrective measures to address such hazards when implementing the employer’s written exposure control plan.

At a minimum, an employer’s written control plan must describe:

• the tasks in the workplace that involve exposure to RSC;
• the engineering controls, work practices, and respiratory protection used to limit employee exposure to RSC by task; and
• the housekeeping measures used to limit employee exposure to RSC.

Written exposure control plans must be evaluated at least annually and updated as needed. An employer’s written exposure control plan must also be readily available for examination and copying by employees, their designated representatives, and representatives of OSHA.

Medical surveillance

Employers must offer free medical surveillance to employees that are exposed to RSC at or above the action level for more than 29 days per year. Medical surveillance includes an initial baseline medical examination within 30 days of initial exposure4 to RSC and periodic examinations at least every three years thereafter.5 When necessary, employers must also provide free medical examinations by specialists for their employees. All examinations must be performed by a licensed health care provider and the employer must provide the provider with: (a) a copy of OSHA’s new regulations; (b) an explanation of the employee’s duties;6 (c) a description of the employee’s exposure to RSC; (d) a report of the employee’s protective equipment and use thereof; and (e) information from records of the employee’s employment‑related medical examinations. Employers are also responsible for ensuring that the results of medical examinations are explained to employees and that written reports of examinations are provided to employees within 30 days.

Hazard communications

Employers must establish a program that complies with OSHA’s general hazard communication requirements under 29 CFR 1910.1200, which regulates the requirements for labels and data on hazardous materials. Containers of crystalline silica must have labels and data sheets that are accessible to employees and that address cancer, lung effects, immune system effects, and kidney effects from RSC exposure. Employers must post specific signage at all entrances to regulated areas with warnings mandated by OSHA.

Employers must also ensure that all employees can demonstrate knowledge and understanding of:

• The health hazards associated with exposure to RSC;
• The specific tasks in the workplace that could result in exposure to RSC;
• The specific measures the employer has implemented to protect employees from exposure to RSC, including the engineering controls, work practices, and respirators to be used;
• The contents of the new regulations7; and
• The purpose and a description of the employer’s medical surveillance program.

Economic Impact

OSHA estimates that the cost of compliance for the construction industry will be $659 million annually. When OSHA estimated its previously proposed regulations would cost $511 million annually, the Construction Industry Safety Coalition and the National Association of Home Builders estimated the proposed regulations’ annual cost would be $3.9 billion and $3-5 billion respectively.  A similar disparity between OSHA and industry estimates is expected for the cost of complying with OSHA’s new regulations. Presently, eight construction industry organizations have filed a petition for review of the new regulations with the U.S. Court of Appeals for the Fifth Circuit.

Ensuring compliance

Given the potential economic impact of OSHA’s new regulations and the new regulatory complexities resulting from the regulations, parties potentially covered by OSHA’s new regulations should consult with counsel. Our team at Norton Rose Fulbright can assist in determining if these regulations apply to your business, and can assist with the following requirements imposed by the regulations:

• advisement on complying with OSHA’s specified exposure controls and the legal considerations for alternative compliance measures;
• securing laboratory agreements to meet the new regulations’ stringent requirements for sample analysis and exposure assessments;
• obtaining a compliant Respiratory Protection Program that is functional and tailored to your business;
• implementing a Written Exposure Control Plan that comprehensively addresses all the requirements of the new regulations;
• guidance on implementing an efficient and compliant medical surveillance program; and
• appropriate employee training, communications, and protections for compliance and risk management.