March 9, 2018

By Pat Miller, Matt Morrison, Dana Svendsen, and Alyssa Levy

OSHA may soon make it easier for employers to comply with the agency’s Respirable Crystalline Silica in Construction Standard. The standard, which OSHA announced in 2016 and began to fully enforce last fall, seeks to protect workers who may inhale silica dust.  A variety of construction operations may expose workers to silica dust including, for example, abrasive sandblasting and cutting bricks, stone, or concrete.

The silica standard is extremely detailed and complex. It contains requirements for assessing workers’ silica exposure, for using exposure control methods and respiratory protection, for offering medical surveillance, and for keeping silica-related records.  Fortunately, “Table 1” of the standard makes compliance with standard easier, at least in some situations.  The Table describes engineering controls, work practices, and respiratory protection requirements that may be implemented by an employer when performing certain construction-related tasks, thereby exempting the tasks from the standard’s exposure assessment provisions and permissible exposure limits.

Last week, during the mid-winter meeting of the American Bar Association’s Occupational Safety and Health Law Committee, a Department of Labor official announced that OSHA is considering changes to the silica standard for construction. According to Ann Rosenthal, the Department’s Associate Solicitor for Occupational Safety and Health, OSHA is currently working with members of the construction community to add more tasks to Table 1.

News that OSHA is considering an expansion of Table 1 comes after a recent federal court ruling that rejected several challenges to the standard by employer groups. The U.S. Court of the Appeals for the District of Columbia Circuit, in an order issued last December, rejected arguments from employer groups challenging the standard’s lower permissible exposure limit and, among other things, the feasibility of compliance with standard

We will provide more information if OSHA updates Table 1.

Pat Miller, Chuck Newcom, Matt Morrison, Dana Svendsen, and Alyssa Levy are part of Sherman & Howard’s Labor & Employment Law Department. 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.