Respirable Crystalline Silica Rule — What You Need to Know: Medical Surveillance Requirement

The new OSHA rule governing respirable crystalline silica calls for medical surveillance screenings to allow for identification of silica exposure-related health effects in certain workers. But who exactly must be surveilled? How? When?

This guide will try to pin down the precise requirements as OSHA has articulated them in the new rule.

Who needs medical surveillance under the new rule?

In keeping with its separation of maritime and general industry vs. construction, the new rule articulates two different requirements.

  • In general industry and maritime, medical surveillance must “be made available to employees exposed to respirable crystalline silica at or above the action level of 25 μg/m3 as an 8-hour TWA [total weight average] for 30 or more days per year.”
  • In the construction industry, the new rule requires that medical surveillance be made available to employees who “use respirators for 30 or more days per year” in situations where those respirators are required by OSHA.

But what if an employee needs to wear a respirator for only a few minutes per day, for a short task?

Those instances count as an entire day toward the 30.

As OSHA explains in the rule: “OSHA clarifies that if an employee is required to wear a respirator at any time during a given day, whether to comply with the specified exposure control methods in paragraph (c) or to limit exposure to the PEL under the construction standard for respirable crystalline silica, that day counts toward the 30-day threshold.”

So an employee of mine qualifies for medical surveillance. What does that even mean?

It means the employee needs to go to the doctor (or other qualified health care professional), have an exam, and obtain a written medical opinion which is shared with the employer. This written opinion needs to contain:

  • The date of the exam
  • A statement that the exam has specifically checked for silica exposure according to the requirements of the standard (See next question)
  • Any “recommended limitations on the employee's exposure to respirable crystalline silica” as a result of this exam’s findings

The employee may learn other medical information from his or her physician during the visit, but this is private and not required to be shared with the employer (or anyone else).

What exactly must the physician’s exam involve?

OSHA specifies that the exam conducted by the physician (or other qualified healthcare provider) must include the following:

  • A review of the patient’s “medical and work history”
  • A “physical examination with special emphasis on the respiratory system”
  • A “chest x-ray interpreted and classified according to the International Labour Office (ILO) International Classification of Radiographs of Pneumoconiosis by a NIOSH-certified B Reader”
  • A “pulmonary function test administered by a spirometry technician with a current certificate from a NIOSH-approved course”
  • “Testing for latent tuberculosis”
  • “Any other tests deemed appropriate” by the healthcare provider

Some physicians specialize in examining patients for ailments related to exposure to silica dust. OSHA does not require it, but you may find it more efficient to proactively seek out these practitioners in your community.

Do I need to give the heathcare provider anything?

Yes. The healthcare provider performing the exam needs to receive:

  • A copy of the exposure standards in the new OSHA respirable crystalline silica rule
  • A “description of the employee's former, current, and anticipated duties as they relate to the employee's occupational exposure to respirable crystalline silica”
  • “The employee's former, current, and anticipated levels of occupational exposure to respirable crystalline silica”
  • “A description of any personal protective equipment used or to be used by the employee, including when and for how long the employee has used or will use that equipment”
  • “Information from records of employment-related medical examinations previously provided to the employee and currently within the control of the employer”

The new rule does not express a preferences for whether this information be sent directly from the employer to the medical professional, or sent along with the employee.

What if I know in advance, without tracking days, that an employee is definitely going to qualify for medical surveillance?

In these cases, OSHA says “an initial (baseline) medical examination must be made available within 30 days of initial assignment (i.e., the day the employee starts working in a job with potential exposures above the trigger point), unless the employee received an examination that meets the requirements of this section within the past three years.”

You must also make subsequent medical exams available “at least every three years” and more frequently if that’s recommended by the healthcare provider.

When does this medical surveillance requirement take effect?

  • For general industry and maritime, OSHA says surveillance needs to start “two years after the effective date for employees exposed above the PEL, and four years after the effective date for employees exposed at or above the action level.”
  • For construction, OSHA says surveillance must begin “one year after the effective date, with the exception that certain requirements for laboratory analysis commence two years after the effective date.”

Does OSHA realize how much this will cost me?

Yes. In the new rule, OSHA places the employer cost of each medical surveillance physician visit (including lost productivity time) at around $420.

Can I pass that cost on to my employees?

No. OSHA specifies that the medical surveillance must be supplied “at no cost to the employee” and further specifies that “if participation requires travel away from the worksite, the employer will be required to bear the cost of travel, and employees will have to be paid for time spent taking medical examinations, including travel time.”

What if the medical professional conducting a medical surveillance needs to send the employee to a specialist to confirm certain findings?

This must also be made available at no cost to the employee, and provided within 30 days of the initial referral.

What if I am a staffing agency and my workers are sometimes assigned to jobs where they accrue exposure(s) that qualifies toward the 30 day threshold?

In addressing this, OSHA cites previous policy memoranda to note that “both the host and staffing agency are responsible for the health and safety of temporary employees and [OSHA] encourages compliance officers to review written contracts between the staffing agency and host employer to determine if they have fully addressed employee health and safety.”

However, in the same paragraph, OSHA then explicitly suggests “staffing agencies may be best positioned to provide medical surveillance.”

It is our opinion — though OSHA does not state this specifically — that this strongly suggests OSHA would like to see staffing agencies taking on the responsibility of tracking which of their workers have accrued days of work in conditions with levels of respirable crystalline silica that qualify them in the direction of required medical surveillance.

I have a lot of employees who might be exposed. Can I trust them to track themselves toward their 30 days per year threshold?

This is a bit tricky. OSHA does not provide a proscribed system or method for tracking which employees have accrued days of exposure, but it does make clear that it is at all times the employer’s responsibility to track which employees are exposed. It seems likely that an OSHA inspector will want to see that you (the employer) have some kind of tracking system in place that involves more than employees self-monitoring.

What if I hire a worker who has 29 days of exposure from a job he had earlier this year, with another company? Will he qualify for medical surveillance after just one day of exposure working for me?

No. Progression toward the 30 day rule resets with every new employer.

The only exception is when an employer hires, releases, and then re-hires the same employee “for more than one short-term assignment during a year, totaling 30 days or more.”

What if an employee has less than 30 days toward the threshold, but is obviously coughing and sputtering? Does this trigger medical surveillance?

No. While it might be sensible to suggest this employee see a physician, OSHA does not require it.

Explaining its rationale, OSHA says that it “did not include a symptom trigger because symptoms of silica-related lung diseases (e.g., cough, shortness of breath, and wheeze) are very common and non-specific,” and also because of employee privacy concerns.

Is OSHA trying to assign blame for silicosis, and/or open me up to lawsuits?

No. OSHA says explicitly: “The purpose of medical surveillance is not to identify which employer is responsible for illnesses resulting from respirable crystalline silica exposures or [to identify which employer] must offer financial compensation.”

In the text of the rule, OSHA makes clear it understands that silica-related health problems can arise from a number of sources — including previous occupations/workplaces, or even “non-occupational” activities and hobbies.

Is this medical surveillance requirement set in stone forever?

Interestingly, it appears not. OSHA says that five years after implementation, it intends to “conduct a retrospective review” of the medical surveillance requirement and its subparts. Based on the findings of this review, OSHA may one day make changes or updates.