December, 2017
So How Are We Supposed To Saw Cut Concrete Now?
That was the first and has continually been the most often question asked by our concrete contractor clients since OSHA's implementation of its new Respirable Crystalline Silica Rule.
Why is that question being asked ? Well, on October 23, 2017, the Occupational Safety and Health Administration's new rule on respirable crystalline silica, generally known as the "silica rule", came into effect and people in the industry are scrambling to understand what it means for them and their employees.  
The new rule requires employers to limit worker exposures to respirable crystalline silica and to take other steps to protect workers. The most significant change found in the new silica rule is the reduction of an employee's Permissible Exposure Limit (PEL) to respirable crystalline silica dust. The prior rule allowed 250 µg/m3 measured over an eight hour time weighted average. The new silica rule slashes the PEL by 80% from 250 µg/m3 to 50 µg/m3 over the same eight hour period. In the event that an employee will be exposed to crystalline silica dust in excess of the new permissible limits, employers must now implement certain Engineering and Work Practice Control Methods in order to mitigate and control the exposure to no more than the new PEL.
According to OSHA, in order to comply with the new rule, employers can choose one of two methods for measuring and controlling exposure to respirable crystalline silica dust. The first control method is to use OSHA's Specified Control Method Chart which specifies various construction activities along with corresponding accepted Engineering and Work Practice Control Methods and required respiratory equipment. That chart can be found on the OSHA website by clicking here. 
The second control method requires the employer to actually monitor and measure the exposure to crystalline silica dust and to implement its own controls in order to comply with the new PEL.     
According to OSHA, regardless of the control method chosen, the new rule also requires construction employers to take the following other steps:

1.  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.
2.  Designate a competent person to implement the written exposure control plan.
3.  Restrict housekeeping practices that expose workers to silica where feasible alternatives are available.
4.  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.
5.  Train workers on work operations that result in silica exposure and ways to limit exposure.
6.  Keep records of workers' silica exposure and medical exams.
So, what does it mean for you?
If you saw cut concrete or masonry, the new silica rule absolutely applies to you. The new silica rule applies to you if your work involves the use of concrete or masonry saws, grinders, drills, jackhammers, handheld powered chipping tools, operating crushing machines, and using equipment or tools for demolition and/or certain other tasks that expose your employees to crystalline silica dust. It is important that you fully understand the new rule and implement the necessary and required controls to comply.  
We will keep you updated on any new developments. In the meantime, if you have questions please contact either  Philip Siegel at (404) 469-9197 or via e-mail by clicking here, or Shane O' Connor at (404) 522-1410 or via e-mail by clicking here.
OSHA Electronic Recordkeeping Rule Delayed Again
Our previous E-Blasts informed you of OSHA's new electronic recordkeeping rule, which was first scheduled to go into effect on July 1, 2017. The rule requires certain employers to electronically submit injury and illness information the Injury Tracking Application (ITA). However, prior to its effective date, OSHA announced it would be permitting employers additional time to become familiar with the OSHA electronic submission website by delaying the effective date until December 1, 2017. In a press release issued on November 22, OSHA announced it would allow employers additional time to become familiar with a new electronic reporting system launched on August 1, 2017, by delaying the effective date until December 15, 2017.
OSHA's news release, which can be accessed by clicking here, also notes that unless the employer is under federal jurisdiction, the following OSHA-approved State Plans have not yet adopted the requirement to submit injury and illness reports electronically: California, Maryland, Minnesota, South Carolina, Utah, Washington, and Wyoming. Establishments in these states are not currently required to submit their summary data through the ITA. Similarly, state and local government establishments in Illinois, Maine, New Jersey, and New York are not currently required to submit their data through the ITA.
Importantly, the press release concludes with this nugget:
OSHA is currently reviewing the other provisions of its final rule to Improve Tracking of Workplace Injuries and Illnesses, and intends to publish a notice            of proposed rulemaking to reconsider, revise, or remove portions of that rule in 2018.
If you have any questions about OSHA's electronic recordkeeping rule, or any other questions regarding OSHA, please contact Philip Siegel. You can reach Philip directly at (404) 469-9197, or you can e-mail him by clicking here.

Latest Update on Overtime Rules
You will recall that we previously wrote that on September 5, the DOL announced that it would not appeal the decision of the Federal court judge striking down the Obama-era overtime rules. On October 30, the Department of Justice surprisingly filed a notice of appeal in the Fifth Circuit. Does this mean the Administration has changed its mind about killing these rules?
No. The move constitutes a procedural maneuver, most likely to prevent the court's ruling from becoming precedent. After the notice of appeal was filed, the DOJ filed a motion to stay the appeal (which was unopposed) and on November 6, the Fifth Circuit granted the motion to stay the appeal until such time as the Department of Labor issues new rules.
Why did the DOJ go through this maneuver? Many experts believe the District Court's ruling called into question at least some of the Department of Labor's authority to establish salary thresholds and other criteria for implementing rules and exception for overtime pay. By filing the appeal and then having it stayed, the government has essentially put the lower court ruling in limbo. It appears that once the Department of Labor issues new rules, the government will then seek to have the original complaint dismissed and the lower court ruling vacated on the grounds that the dispute has been made moot by the new rules.
Our overall conclusion of the status remains the same as in our last update: the Obama administration's overtime rules have been ruled invalid and will not be implemented. The DOL has begun the process of developing a new set of rules which likely will implement some sort of increase in the salary threshold levels, although not on the order of the drastic increase under the invalid rules. We will keep you updated on any new developments. In the meantime, if you have questions please contact either Philip Siegel by clicking here   or Scott Calhoun by clicking here   .
Crane Operator Certification E-Blast
On November 9, 2017, OSHA delayed its crane operator certification requirements by one year, which were set to take effect on November 10, 2017. According to OSHA, the new deadline for employers to ensure that construction crane operators are certified has now been pushed back to November 10, 2018. This extension also pushes back the employer's duty to ensure that employees are competent enough to operate a crane safely.
This is not the first time that OSHA has decided to delay the rule. OSHA originally proposed the crane certification rule (OSHA's Cranes and Derricks in Construction Standard) back in August 2010, with an original compliance deadline of November 2014. However, in late 2014 OSHA decided to extend the deadline three years to November 10, 2017.
At this time, OSHA has further delayed implementation of the rule to address two key issues raised by industry stakeholders. First, stakeholders are concerned that accreditation of crane operators by an independent testing organization does not ensure that the crane operators are actually competent enough to perform construction work. Second, stakeholders were alarmed when they learned that two of the four accrediting services were issuing certifications for the type of crane only despite the fact that OSHA's standard requires certification based on the type and capacity of the crane equipment.
For now, employers should continue their business as usual while OSHA determines the next steps with the crane operator certification standard. Please contact William E. Burnett by clicking here   or Philip J. Siegel by clicking here   if you have any questions regarding OSHA's crane operator standard and the delay of its implementation.
White House Nominee Scott A. Mungo to Head OSHA
On October 27, 2017, President Trump, through a White House press release, announced his intent to nominate Scott A. Mungo to lead OSHA as Assistant Secretary of Labor, Occupational Safety and Health. In its press release, the White House touted Mr. Mungo's experience at FedEx, noting he had twice received FedEx's highest honor, the FedEx Five Star Award, for his safety leadership. Prior to joining FedEx, Mr. Mungo was Division Counsel at Westinghouse Electric Corporation's Waste Isolation Division and served in the U.S. Army JAG Corp.
If confirmed, Mr. Mungo would take over for Loren Sweatt, who has served as acting assistant secretary since July 24, 2017. Mr. Mungo's nomination has received support from industry groups including the American Trucking Association as well as raising concern from advocacy groups such as the National Council for Occupational Safety and Health. Mr. Mungo will go before the Senate Health, Education, Labor and Pensions Committee for his confirmation hearing on Tuesday, December 5, 2017 at 10:00 a.m. Mr. Mungo is one of four nominees to be considered at the hearing.
Relief for Employers From the NLRB On the Way?
The National Labor Relations Board is a highly politicized body whose members' decisions reflect their political party affiliations. Rulings made by a Democrat majority typically favor unions, while those made by a Republican majority tend to favor management.
During the Obama administration, the NLRB had a Democrat majority. With a Democrat majority, many pro-union decisions were issued by the NLRB, including those addressing at-will employment and civility provisions often found in Employee Handbooks. Things changed recently, however, when two Trump nominees, Marvin E. Kaplan and William Emanuel, joined fellow Republican and Board Chair Philip Miscimarra and Democrats Mark G. Pearce and Lauren McFerran on the Board. With the addition of the two Trump nominees, the Board has a Republican majority, but only until December 16, when Philip Miscimarra's term ends. It is expected that Mr. Miscimarra will be replaced by a Trump nominee who favors management over the union, which would again give the Board a Republican majority.
Not only does the Board now have a Republican majority, on November 8, Peter B. Robb was confirmed as the Board's General Counsel. Mr. Robb, a management-side attorney, was nominated by President Trump. As General Counsel, Mr. Robb is expected to advance policies which undo the work of the Board under President Obama, when it had a Democrat majority.
Perhaps relief is on the way for employers who have felt the heavy hand of the NLRB these last several years. Only time will tell. But it does appear that many of the decisions reached by the NLRB under President Obama will be revisited, once Mr. Miscimarra is replaced with a Republican, leaving the Board with a Republican majority.
Appeals Court Rules Additional Leave is Not a Reasonable Accommodation Under the ADA
The Americans with Disabilities Act (ADA) provides protection to qualified individuals with disabilities. A qualified individual with a disability is one who can perform the essential functions of their job, with or without reasonable accommodation. Employers are required to provide reasonable accommodations to qualified individuals in order to allow them to perform the essential functions of the position, unless the reasonable accommodations cause undue hardship.
Recently, the EEOC has advanced the position that providing disabled individuals with temporary leave from work qualifies as a reasonable accommodation, unless providing the leave causes the employer an undue hardship. Consider the case of the employee who happens to be out on leave taken pursuant to the Family Medical Leave Act (FMLA), which permits covered employees up to 12 weeks of unpaid. If, at the end of the 12 weeks of unpaid leave under the FMLA the employee is unable to work, the question becomes whether providing additional leave is a reasonable accommodation required under the ADA. In most instances, when the employee is not able to provide a date certain by which they can return to work, asking to hold the position open indefinitely is not a reasonable request. On the other hand, if the employee promises to return by a date certain, that may be a reasonable request which must be accommodated unless it causes the company undue hardship, according to the EEOC. Fortunately, the Seventh Circuit Court of Appeals has provided some clarity on whether this type of request is reasonable.
In the recent case of Severson v. Heartland Woodcraft, Inc., the Plaintiff requested 2 - 3 months of leave to undergo back surgery after having used all of his permitted unpaid leave under the FMLA. The employer denied the request because the Plaintiff's position needed to be filled. The Plaintiff then filed suit in federal court alleging that the failure to provide the reasonable accommodation of allowing the additional leave was a violation of the ADA.
The federal district court did dismiss the employee's case holding that the request for additional leave of 2- 3 months was unreasonable, and the Seventh Circuit Court of Appeals affirmed that decision on the same grounds. The Court of Appeals specifically held that, although a brief period of leave (days or weeks, for example) may sometimes be a reasonable accommodation under the ADA, "the term 'reasonable accommodation' is expressly limited to those measures that enable a person to work. An employee who needs long-term medical leave cannot work and thus is not a 'qualified individual' subject to protection under the ADA."
The decision reached in the Seventh Circuit is an important one. When the accommodation request is unreasonable, the employer is not required to carry the burden to show accommodating the request would cause an undue hardship. While each case will need to be decided on its own merits, and, indeed, other courts in different jurisdictions have reached holdings in conflict with the decision reached in the Seventh Circuit, employers can be encouraged that at least one federal court of appeals has determined that the request for additional, extended leave is not a reasonable request for an accommodation.
Philip Siegel Selected by Peers as One of Georgia Trend's 2017 Legal Elite!
Philip Siegel was recently selected by his peers as one of Georgia Trend's 2017 Legal Elite.  Georgia Trend magazine invited participation by all Georgia lawyers, asking them to nominate the attorneys they consider best in 16 different practice categories.  When the ballots were counted, Philip was recognized as one of the state's top construction lawyers.