Silica Safety Enforcement Delayed for Construction Industry

Cal/OSHA has delayed enforcement of its crystalline silica safety standard for the construction industry for another three months to ensure the California rules are in synch with federal rules on the dangerous airborne matter. The move came after Fed OSHA announced April 6 a delay in adoption of the crystalline silica standard for the sector “to conduct additional outreach and provide educational materials and guidance for employers.”

The silica rules have already been in effect for general industry since 2016 and the delay in enforcement is only for the construction industry. Enforcement for the construction sector was slated to start June 23, but that’s been changed to Sept. 23 under the new order. Under the new silica standard, the permissible exposure limit is 50 micrograms per cubic meter of air, compared to the old standard of 100. The California standard is similar to the federal standard, which the industry is challenging in a federal lawsuit. One outfit, the American Chemistry Council, wrote to the Cal/OSHA standards board that the 50 micrograms level is unnecessary and that the current standard, in place since 1971, has markedly reduced the cases of silicosis.

Industry has complained that the cost of complying with the new standard for employers nationwide will be about $6 billion, although Fed-OSHA says it will cost $371 million for employers to fall in line. The sticking point for the federal construction silica rule is that it requires wet cutting of silica-containing materials to reduce the chances of particles in the air. The California rules allow for wet cutting and dry cutting with vacuum saws that suck in the particles before they escape into the air. Contractors would rather cut dry rather than wet.

Fed-OSHA’s requirements were also scheduled to take effect on June 23, but the agency announced that implementation would be delayed by three months to give industry a chance to provide data showing that dry vacuum cutting is just as safe in reducing crystalline silica dust as wet cutting. While Cal/OSHA’s move only delays enforcement, the silica rule is already on the books and employers should comply with it.

All construction employers covered by the standard are required to:

  • Establish and implement a written exposure control plan that identifies tasks that involve exposure and methods used to protect workers, including procedures to restrict access to work areas where high exposures may occur.
  • Designate a competent person to implement the written exposure control plan.
  • Restrict housekeeping practices that expose workers to silica where feasible alternatives are available.
  • Offer medical exams – including chest X-rays and lung function tests – every three years for workers who are required by the standard to wear a respirator for 30 or more days per year.
  • Train workers on work operations that result in silica exposure and ways to limit exposure.
  • Keep records of workers’ silica exposure and medical exams.

 

If you have not started complying, you should get your new safety protocols in place now. You have an additional three months to do so.

 

How to Avoid Being Sued for ADA Violations

During the last eight years since the Americans with Disabilities Act Amendments Act (ADAAA) was enacted, the landscape for employers has changed dramatically.
The odds of being sued have increased significantly and the onus is now on employers to engage in an interactive process with an employee who claims to be disabled or one that you, as an employer, consider to be disabled.
The original Americans with Disabilities Act has been in effect for 25 years, but the ADAAA shifted the emphasis from whether an employee has a qualifying disability to the interactive process and the efforts employers take to explore reasonable accommodation with employees. That is where the focus remains today.
The employment law firm of Foley and Lardner LLP, in a recent blog post, recommends the following whenever an employee mentions a potential disability or the circumstances suggest a potential need for accommodation:

1. Majority of people have a ‘disability’
The law firm recommends working from the position that if an employee begins talking about a mental health or physical condition affecting their ability to work, you should consider approaching the issue from the perspective that they potentially have a disability. Better that than to ignore what you’re hearing.

Many recent precedent-setting lawsuits have hinged on employers starting the interactive process too late or ignoring employees’ requests for accommodation. And some courts have ruled that even if the employer “perceives” that the employee is disabled, they may have an obligation to consider accommodation.

In other words, it’s better to start interacting with the employee than shutting down the process before it has a chance to start.

2. Process matters as much as the result
Under the ADAAA, the focus is on the interactive process with the end goal of identifying how the employer can reasonably accommodate the employee or job applicant so that they can do their job.
The process must be conducted in good faith and thoroughly with the legitimate goal of identifying a reasonable accommodation. Courts have increasingly viewed this process as crucial, and almost as important as the end goal.

3. Truly engage in the process
You’ll need to back up your interactive process with proof that you were engaged in it.
Even when it may be clear to you that you won’t be able to accommodate someone, you should still show that you tried to find a solution that would work.
Foley and Lardner recommend that you at least:
• Communicate with the employee and show that you either reached agreement on the restrictions or obtained supporting medical documentation.
• Show that you explored with the employee and their supervisor the possible reassignment of non-essential tasks.
• Show you assessed the employee’s qualifications and looked at every open job for which they qualified to assess a potential transfer.
• Show you had a final conference with the employee before concluding reasonable accommodation was not possible.

Make sure that you have a clear record of the interactive process. The more you can back up your efforts of trying to identify a reasonable accommodation, the more likely it will be that a court would view your efforts favorably and that you made good-faith steps in arriving at your conclusion.
“As we counselors love to say – document everything, including the thought process leading up to all conclusions reached, and the fact that you did not reach the final conclusion until after completing all steps in the process,” the law firm wrote in its blog.

4. No cookie-cutter approach
While many employers want to consistently perform the same kinds of steps from situation to situation, it is equally important to take each accommodation inquiry and each employee’s unique circumstances on their own merits.
It’s highly unlikely that multiple employees will have the same limitations and the same medical diagnoses, restrictions and prognoses regarding the various essential functions of the job.
Because of this, there is no single approach to accommodation, and your approach to the interactive process should allow for flexibility.

5. Don’t forget the FMLA and workers’ comp
Often there is some overlap between the ADA and other legal frameworks like the Family Medical Leave Act and workers’ compensation insurance.
For example, if an employee cannot return at the expiration of FMLA leave for his or her own serious health condition, the employer runs a serious risk of terminating the employee without first conducting an independent ADA analysis and assessing whether additional leave or moving them into a different position conforming with their restrictions is a reasonable accommodation.
The same applies after an employee receives a permanent and stationary workers’ compensation diagnosis with restrictions that preclude maintaining him or her in the same position. State workers’ compensation requirements may not require an employer to take further steps in such a circumstance, but the ADA does.