While nothing formal has been released, this Spring OSHA sent a preliminary notice to the Office of Management & Budget of its intent to revise portions of medical removal provisions contained in the lead rules for general industry and construction. Current medical information suggests that OSHA’s existing triggers for removing a worker from a workplace with occupational lead exposure – 60 micrograms per deciliter (ug/dL) for general industry and 50 ug/dL in construction, with permission to return to work at 40 ug/dL – are not sufficiently protective and those levels were set in 1978 and never strengthened. The changes would also likely impact medical surveillance triggers under OSHA’s lead rule as well.
While it is not clear what the new “magic number” will be for either removal or resumption of work, the studies identified by OSHA found that cognitive, renal (kidney) and reproductive adverse effects were found in adults at levels under 40 ug/dL. California’s Medical Management has recommended that blood lead levels in adults be reduced to less than 10 ug/dL. The current head of federal OSHA, Doug Parker, is the former head of Cal-OSHA, which places greater emphasis on occupational health issues. The CDC also announced in October 2021 that it was lowering blood lead reference values, used to identify children with high lead exposure, to 3.5 ug/dL. EPA is also involved in the multi-agency effort to reduce lead exposures from drinking water and paint.
OSHA initially put the reduction of lead levels on its regulatory agenda in May 2016, but the effort stalled during the Trump administration. The notice went to OMB in March, and typically takes up to 90 days before clearance is given to the agency to publish the proposal. California and Washington State OSHA agencies are also looking at revisions on lead medical removal, and Michigan (MI-OSHA) already lowered its medical removal point to 30 ug/dL.
While the business community has offered support to some revision of the standard, there are concerns that if a significant reduction is adopted, many new worksites may be covered by the rule arising from incidental lead exposure rather than by participating in lead-intensive tasks such as welding or in workplaces such as foundries, smelters and battery factories.
Rulemaking to add medical removal provisions to OSHA’s 2016 respirable crystalline silica standard is also on the agenda, with a proposal expected this summer. OSHA was ordered by the U.S. Court of Appeals to review its decision to omit medical removal in 2017. Unlike lead, removal for silica is complicated by the absence of a biomarker, other than relying on chest X-rays, and once silicosis or other lung damage occurs due to silica, it is irreversible.
For lead and other toxic chemicals with removal provisions in their standards, OSHA views medical removal cases as a “poisoning” recordable on the agency’s 300/301 logs, even if the individual continues working in another capacity with the employer because it constitutes a restriction (for lead exposure) and a transfer (from the usual position). If the individual cannot be transferred to a position without exposure to the toxic substance at issue, they would remain off-duty and likely be eligible for worker’s compensation wage replacement, subject to individual state laws.
For more information about medical removal provisions or programs, contact Adele Abrams at safetylawyer@gmail.com or call the Law Office at 301-595-3520.
