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The Occupational Safety and Health Administration (OSHA) shelved its long-promised proposed rule that would have required employers to maintain an injury and illness prevention program. The news was gleaned from the agency’s portion of the U.S. Department of Labor’s Spring 2014 Regulatory Agenda, published May 23, 2014.
Other changes employers should take notice of include a new request for information (RFI) in advance of a proposed rule on communications tower work and the proposed rule on combustible dust being downgraded back to the pre-rule stage.
OSHA’s agenda contains 26 regulatory entries: Nine in the pre-rule stage, seven proposed rules and 10 final rules.
I2P2 Exits the Stage—for Now
OSHA planned to issue a proposed rule requiring employers to implement an injury and illness prevention program (I2P2) by September 2014.
It was expected that the I2P2 rule would act as a safety catchall, and require employers to find and fix hazards in their workplaces.
The rule was expected to build on OSHA’s voluntary
Safety and Health Program Management Guidelines, published in 1989, as well as best practices learned from organizations that have successfully reduced injuries and illnesses and national consensus standards. Assistant Secretary of Labor for Occupational Safety and Health David Michaels had made an I2P2 rule his top regulatory priority since taking office in 2009.
Experts believe this marks the proposal’s exit for the remainder of President Barack Obama’s administration. “There’s so much for OSHA to do in the last 2.5 years of the Obama administration, and not enough time to do it all,” remarked John Martin, a shareholder in the Washington, D.C., office of Ogletree Deakins. “Bumping I2P2 to the backburner all but guarantees this administration won’t get around to it,” he added.
Basically, it’s a calendar issue. “I don’t see how the agency could conduct a small business review panel, issue a proposed rule, take comments, hold a hearing and issue a final rule before the end of the president’s second term on a topic that is so controversial,” agreed Tressi Cordaro, a shareholder in the Washington, D.C., office of Jackson Lewis. “It’s likely that this is the end of this rule during this administration.”
Why did the agency discard it now? There are many thoughts on this, including the shift in resources needed for OSHA’s silica rulemaking and the upcoming midterm elections.
“I believe limited resources are the reason, and it looks like OSHA has shifted focus to existing rulemakings and moving those into final rules rather than undertaking a new rule,” Cordaro said.
Perhaps a bigger problem: “The law requires new OSHA standards to improve safety or health for American workplaces. OSHA couldn’t say how I2P2 would accomplish that, especially with national injury and illness rates generally falling each year. Just claiming ‘it’s a good idea’ probably won’t hold up in court,” said Martin.
Communications Tower Regulations
Work on updated regulations for communications tower workers will begin with OSHA’s intent to issue a RFI on safety practices for tower work in June 2014. OSHA stated that the current general industry and construction standards regulating communication towers do not adequately protect employees.
“While the number of employees engaged in the communication tower industry remains small, the fatality rate is very high,” OSHA said. “Over the past 20 years, this industry has experienced an average fatality rate that greatly exceeds that of the construction industry. … In 2013, the industry experienced a dramatic increase in the number of fatalities … with 13 total fatalities.” Falls—resulting from lack of proper fall protection or the collapse of towers while workers are tied to them—are the leading cause of death in tower work, according to OSHA. “Employees are often hoisted to working levels on small base-mounted drum hoists that have been mounted to a truck chassis, and these may not be rated to hoist personnel,” OSHA speculated.
Combustible Dust Rule Downgraded
OSHA changed the status for its
combustible dust proposed rule for general industry back to the pre-rule stage. The agency will initiate a required small-business review in December 2014 instead of April 2014 as previously scheduled.
“OSHA has come under a lot of criticism for dragging [its] feet on the combustible dust rule, so pushing that one back was a big surprise,” said Martin.
Some think the reason for the delay lies with the National Fire Protection Association (NFPA) currently working to finish updating its consensus industry standard on combustible dust. “OSHA puts itself in a better position when it issues a proposed rule based on a national consensus standard,” said Cordaro, adding that it will likely serve as the basis for the proposed rule.
“It makes a lot of sense for them to wait until NFPA issues something,” agreed Martin. “If the NFPA can hold up something that was accomplished with industry consensus, and OSHA follows it, that makes for smoother rulemaking.”
Beryllium Proposal Moved to July
OSHA postponed its release date for a proposed rule regulating occupational exposure to beryllium from April to July 2014. The agency published a RFI in November 2002 to solicit data on occupational exposure to beryllium. Since then,
the United Steelworkers and Materion Corp., the largest beryllium manufacturer in the country, have worked with OSHA to develop a proposed rule.
In other items critical to the construction industry, amendments to the cranes and derricks in construction standard are scheduled for July 2014, and the release of the final rule for confined spaces in construction has been rescheduled for August 2014. The standard complements the 1993 issued rule that protects employees who enter confined spaces while engaged in general industry work.
OSHA also announced plans to initiate a small-business review in August 2014 on regulations preventing back-over injuries and fatalities. Backing vehicles and equipment are common causes of struck-by injuries and also can cause caught-between injuries when backing vehicles and equipment pin a worker against an object.
Chemical Safety Changes Under Review
OSHA is developing an RFI seeking input from the public and stakeholders on effective ways to address occupational exposure to chemicals.
Tension currently exists between industry, labor and professional occupational safety and health organizations around the agency’s aim to revise OSHA’s permissible exposure limits (PELs), which it considers outdated. The majority of OSHA’s PELs were adopted in 1971, and only a few have been successfully updated since that time. OSHA also plans to analyze responses from a recently issued RFI related to updating its process safety management standard to prevent chemical disasters, and it announced a July 2014 stakeholder meeting to address the lessons learned about emergency response and preparedness from the
2013 West, Texas ammonium nitrate explosion in which 15 first responders died.
OSHA postponed initiating a small-business review panel from January to May 2014 on the need for regulations to reduce the risk of workers being exposed to infectious diseases. Workplaces where such control measures might be necessary include health care, emergency response, correctional facilities, homeless shelters, drug treatment programs and other occupational settings where employees might be at increased risk of exposure to infectious people. A standard could also apply to laboratories, which handle materials that may be a source of pathogens, and to pathologists’, coroners’ and medical examiners’ offices, and mortuaries, according to OSHA.
The agency is also calling for a regulatory review of the bloodborne pathogens standard—which began in 2009—to be completed by July 2014.
OSHA expects to issue a final rule in June 2014 that would change two aspects of the OSHA record-keeping and reporting requirements. First, OSHA is updating the list of industries that are partially exempt from the requirement to maintain a log of occupational injuries and illnesses, generally due to their relatively low injury and illness rates. The rule would replace the current list of industries based on the Standard Industrial Classification system with a new list, based on the North American Industry Classification system. Second, the final rule would revise employer requirements to report fatalities and certain injuries. Under current regulations, businesses must report to OSHA, within eight hours, any work-related incident resulting in the death of an employee or the inpatient hospitalization of three or more employees. The proposed reporting requirement for inpatient hospitalizations would be triggered by the hospitalization of just one worker.
Another proposed rule, slotted for August 2014, would clarify an employer’s duty to create and maintain accurate records of work-related injuries and illnesses. “The duty to make and maintain an accurate record of an injury or illness continues for as long as the employer must keep and make available records for the year in which the injury or illness occurred,” the agency states. “The duty does not expire if the employer fails to create the necessary records when first required to do so.”
Recent court opinions have decided that an employer couldn’t be cited for record-keeping violations that were more than six months old, which is past OSHA’s statute of limitations.
Finally, the agenda revealed a March 2015 release date for OSHA’s
controversial reporting rule that would require certain employers to electronically send injury and illness data to the agency, which would make the information publicly available.
“An updated and modernized reporting system would enable a more efficient and timely collection of data and would improve the accuracy and availability of the relevant records and statistics,” OSHA explained.
Roy Maurer is an online editor/manager for SHRM.
Follow him @SHRMRoy
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