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July 24, 2018
Medical surveillance under the silica standard

On July 23, 2018, OSHA’s 1-month delay of enforcement of alleged violations of the agency’s Respirable Crystalline Silica Standard for General Industry/Maritime (29 CFR 1910.1053) came to an end. During that period, OSHA inspectors were instructed to provide compliance assistance in lieu of enforcement to employers whom inspectors believed were making a good-faith effort to meet the requirements of the standard. Now, a good-faith effort to comply will not be enough to escape being cited for an alleged violation. If OSHA’s promulgation of the standard 2 years ago was not sufficient to put employers on high alert about their obligation to protect their employees from the dangers of breathing in airborne silica, the potential for being put on OSHA’s violator list, paying a penalty, and meeting all the standard’s requirements on an expedited schedule should provide the needed incentive.

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The silica standard carries multiple obligations that many employers, including small businesses, will find new and onerous. These include air sampling, assessing employee exposure, repeating these actions whenever changes that may affect exposure occur, having a written exposure control plan with mandatory housekeeping practices, and implementing that plan.

Clarifications

The standard also contains exacting medical surveillance requirements. All employers should carefully review the medical surveillance provisions at 1926.1153(h), which we will not repeat here. Instead we will provide several clarifications that may simplify compliance.

  • Medical surveillance is intended to identify respirable crystalline silica-related diseases so that employees with those diseases can take actions to protect their health; determine if an employee has any condition, such as a lung disease, that might make him or her more sensitive to respirable crystalline silica exposure; and determine the employee’s fitness to use respirators.
  • The requirement to offer medical surveillance is triggered by exposures above the permissible exposure limit (PEL) for 30 or more days a year. If the exposure threshold is not met for 30 days in the course of a year, medical surveillance is not mandated. The 30 days can occur anytime in a 12-month period; the days do not have to be consecutive. (Beginning June 23, 2020, medical surveillance will be required if worker exposure is at or above the action level (AL), which is lower than the PEL, for 30 days or more a year.)
  • Exposures occurring with past employers do not count toward the 30-day trigger with the current employer (i.e., the trigger is for employment with each particular employer). However, the 30-day trigger would apply when any employer hires a particular employee for more than one short-term assignment during a year, which together total 30 days or more.
  • OSHA does not look favorably on rotating employees out of areas where the PEL is exceeded before employees are exposed for 30 days. Other rules contain provisions prohibiting such rotations; the silica standard does not. But OSHA states: “Employee rotation is a type of work practice control, [but] its use as a means of avoiding implementation of engineering and other work practice controls is not encouraged. It can be administratively difficult to maintain employees’ exposures at or below the PEL solely using rotation.”
  • Medical surveillance must be made available at no cost to the employee and at a reasonable time and place.
  • Employees are under no obligation to be examined by a physician or other licensed healthcare professional (PLHCP). However, employers must continue to offer a medical examination to each employee who meets the trigger for medical surveillance whenever it comes due again, even if the employee has previously declined such an examination.
  • OSHA has instructed its inspectors to ask employees about their exposures to silica, respirator usage, entry into regulated areas, and whether they have been offered medical examinations by their employer.

OSHA’s Small Entity Compliance Guide for the Respirable Crystalline Silica Standard for General Industry and Maritime is available here.

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