By Pat Miller, Rod Smith, Chuck Newcom, Matt Morrison, and Alyssa Levy

On September 20, 2017, OSHA’s Acting Deputy Assistant Secretary issued a memorandum to Regional Administrators on the new Respirable Crystalline Silica in Construction Standard, which becomes effective September 23, 2017. In this memo, OSHA states that during the first 30 days that the standard is effective, the Agency will evaluate employers’ good faith efforts to comply with the new standard, and will “render compliance assistance and outreach” to employers. What this means for employers in construction is that as long as they are taking reasonable steps to comply with the requirements of the silica standard, they likely will not be cited within the first 30 days that it is effective. Rather, only employers who are not making any efforts to comply with the standard run the risk of receiving a citation during this time. OSHA’s memo also states that the Agency will be providing interim inspection and citation guidelines prior to the expiration of the 30-day time period. As we have previously noted, the new silica standard is incredibly complicated, and OSHA has delayed its enforcement in the past. This recent move by the Agency, while not a delay in its effective date, can be seen as OSHA’s acknowledgment of the complexity of the rule. OSHA’s decision to provide this grace period comes on the eve of oral arguments in litigation challenging the new rule. On September 26, 2017, a three-judge panel of the Court of Appeals for the District of Columbia Circuit will hear arguments on industry challenges to the silica standard. There is no set time frame for a decision in that case. Regardless of OSHA’s recent memo and the pending court challenge, employers are encouraged to ensure that they are fully compliant with the new standard. We will be providing updates on the inspection and citation guidelines and litigation as they develop.

Pat Miller, Rod Smith, Chuck Newcom, Matt Morrison and Alyssa Levy are part of Sherman & Howard’s Labor & Employment Law Department, practicing in the areas of occupational safety and health law. They routinely appear before the federal Occupational Safety and Health Review Commission, the federal Mine Safety and Health Review Commission, and state occupational safety and health boards.

Sherman & Howard has prepared this advisory to provide general information on recent legal developments that may be of interest. This advisory does not provide legal advice for any specific situation and does not create an attorney-client relationship between any reader and the Firm.