OSHA Update

Small tweaks could mean big changes for elevator-service companies.

One defining characteristic of President Barack Obama’s administration has been the energy and aggressiveness of federal agencies. OSHA under Dr. David Michaels has certainly been no exception, and, in many ways, has been a leader in bringing about the kind of “change” the president promised. From insisting that union representatives be allowed to accompany OSHA inspectors during inspections – even if the workplace is not unionized – to issuing proclamations regarding how employers need to provide for transgender restroom facilities, OSHA has been a leader in delivering the promise the president made in 2008 of “fundamentally transforming the United States of America.”

Given OSHA’s persistent attempts to apply the permit-required confined-space standard to service work, it is likely that it will not take OSHA long to try to apply the new construction standard to elevator and escalator construction work if the opportunity arises.

The pace of most changes, however, is gradual, not explosive. After all, if you throw a frog in a pot of boiling water, it jumps out. But, if you put the frog in tepid water and gradually heat the water up, it does not figure out what is going on until it is too late. Slow but constant, unrelenting degrees of change get you boiled frog. What follows are just a few of the very recent ways OSHA has turned up the heat on American employers.

Hazardous Energy Control

Concerning elevator-service companies and hazardous energy control (lockout/tagout), OSHA asserted in 2009 that, under the hazardous energy-control standard, 29 C.F.R. § 1910.147(f)(2)(i), an elevator-service company as an “outside employer” had to inform the “on-site employer” (the customer) of the hazardous energy-control procedures it would use while doing repair work. The citation was vigorously contested, with the service company winning at trial, but the citation was eventually upheld by the federal Circuit Court of Appeals for the District of Columbia. The court reasoned that, if a host employer had access to any zone of danger created by the service work, the elevator-service company was obliged to exchange information regarding lockout/tagout procedures before performing the repair work.

This ruling impacts every elevator-service company. It gives OSHA the green light during an inspection to cite a service company for failing to exchange information about lockout/tagout with the customer if any “on-site” employee could potentially enter the zone of danger or, in other words, be exposed to the unexpected movement of any equipment being worked on by the elevator-service company. Whether it is the elevator car itself, or just blocking a freight-car gate, work involving hazardous energy control can now likely trigger a duty to provide information about the service company’s procedures before the work can proceed.

Injury-Reporting Rule

Elevator construction and service companies are also directly impacted by OSHA’s changes to the work-related injury- and illness-reporting rule. The new rule, effective January 1, 2015, requires employers to report directly to OSHA within 24 hours of occurrence whenever a worker is admitted to a hospital for medical treatment, suffers an amputation or loses an eye. Previously, OSHA only had to be notified when three or more workers were hospitalized. A little short of halfway through the year, OSHA had already received 5,474 incident reports, according to the administration’s head.

These reports are not only resulting in increased workplace inspections, but also raising concerns about data security. OSHA announced its intention to make the accident reports and injury logs available to the general public by the end of 2015. OSHA states that it will redact the employees’ personal information, but the accident history of the employers will be available. Given the recent multiple instances of database breaches and security issues with federal-agency data, as well as the obvious potential to misuse and misinterpret the data, employers cannot be blamed for being disturbed by this plan.

Confined Spaces in Construction

Elevator and escalator construction and modernization companies will also be impacted by OSHA’s new confined spaces in construction standard (ELEVATOR WORLD, August 2015 and this issue, p.??). The standard’s original effective date was August 3, 2015, but OSHA announced it was postponing full enforcement of the new standard until October 2, 2015, to allow time for employers to train and acquire the necessary equipment. Thus, before October, no citations will be issued to employers that have scheduled training required by the new standard, taken steps to obtain necessary equipment and otherwise taken steps to address confined spaces in their workplaces.

Prior to this rule, the only confined-spaces regulation applicable to construction simply required employers to provide employees entering confined-spaces training on the hazards involved, needed precautions, and the use of protective and rescue equipment. The new construction confined-spaces standard imposes a confined-spaces process very similar to the general industry rule. Construction employers now have to determine if workers enter a confined space, which hazards could be there, how to eliminate those hazards, which training to provide workers and how to rescue workers in an emergency.

The construction confined-spaces standard defines a “confined space” as a space that: 1) is large enough and so configured that an employee can bodily enter it, 2) has limited or restricted means for entry and exit and 3) is not designed for continuous employee occupancy. Importantly, “pits” are specifically identified as a potential confined space, with “elevator pits” being described as a specific example in OSHA’s explanation of the new rule’s potential application. Letters to the National Elevator Industry, Inc. from OSHA discussing elevator pits as potential confined spaces are included in the explanatory material of the new construction-industry confined-spaces rule. In fact, the final language of 29 C.F.R. § 1926.1201, which defines the scope of the standard, contains the following explanation of its scope (emphasis mine): “Note to paragraph (a). Examples of locations where confined spaces may occur include, but are not limited to, the following: bins; boilers; pits (such as elevator, escalator, pump, valve or other equipment)…”

OSHA continues work on multiple other rules, as well. Issues such as combustible dust, crane-operator qualifications in construction, and exposure to silica and beryllium are in early stages.

Given that ladders in pits five feet deep have been found to be “limited or restricted means for entry and exit,” elevator and escalator construction companies need to be aware of this potential important issue. But whether the pit is a confined space is not the end of the analysis – the full requirements of the standard apply to permit-required confined spaces (PRCS). A confined space must have certain hazardous characteristics before it is a PRCS and the new standard’s full program requirements are triggered. One triggering characteristic is if the space “contains any other recognized serious safety or health hazard.” This is a catch-all phrase open to interpretation. Is moving equipment like sheaves or counterweights in a pit while an employee is located in the pit such a hazard? Is the temporary running platform such a hazard? Given OSHA’s persistent attempts to apply the permit-required confined-space standard to service work, it is likely that it will not take OSHA long to try to apply the new construction standard to elevator and escalator construction work if the opportunity arises.

Transgender Workers and Restrooms

I would be remiss if I omitted discussion of OSHA’s efforts to ensure transgender employees have adequate access to restrooms in the workplace. It is understandable if one erroneously concluded such a policy would fall outside of OSHA’s original mandate of ensuring American workers have a place to work that is free from recognized hazards likely to cause death or serious physical harm. After all, that is what the Occupational Safety and Health Act states. To fulfill this mandate, OSHA adopted a lengthy set of regulations that apply to workplaces, one of which – the “sanitation” standard – understandably requires employers to provide employees with prompt access to toilet facilities “separate for each sex” and prohibits unreasonable restrictions on employee use of toilets. 

Given the Equal Employment Opportunity Commission’s targeting of employers who allegedly discriminate against transgender individuals, OSHA joined the effort by interpreting the sanitation standard to require that employers allow “all employees. . . to use the facilities that correspond with their gender identity.” OSHA specifically stated no employee should be required to provide any medical or legal documentation of gender identity, nor use a segregated facility apart from other employees based on gender identity or transgender status. To OSHA, these would be “unreasonable restrictions” on toilet availability. Irrelevant are the concerns of biological males or females who object to having someone in the restroom with them who is of the opposite sex but, at the time, identifies as a different gender. Elevator and escalator service and construction companies, with mobile crews, could be impacted by the sanitation standard’s requirement that mobile employees have “transportation immediately available to nearby toilet facilities which meet the other requirements of this [standard].”

Regulatory Agenda

OSHA continues work on multiple other rules, as well. Issues such as combustible dust, crane-operator qualifications in construction, and exposure to silica and beryllium are in early stages. A proposal to change the recordkeeping standard to make clear an employer’s continuing obligation to create and maintain accurate injury and illness logs is also beginning. Finally, rules governing infectious-disease exposure and an employer’s obligation to create written injury- and illness-prevention programs are still alive but simmering on the back burner.