As we roll into the final year of the Obama Administration, one might think that regulatory and other enforcement initiatives would slow down at OSHA, but that certainly doesn’t seem to be in the cards this time around—unlike in other lame duck administrations.
The new regulatory agenda, announced by OSHA shortly in late November 2015, coupled with ongoing and planned enforcement activities, make it clear that OSHA plans to end this administration with a bang rather than a whimper. Of particular interest to the construction industry was the announced plan to issue a final rule tightening worker exposures to crystalline silica in February 2016. While this is likely to slip, because the rule has not yet gone to the Office of Management & Budget (White House regulatory office, OIRA) for its mandatory review, it sends a clear signal that OSHA is not backing down from criticism of the rule and wants to defend it from the inevitable lawsuits before its supporters leave office.
A small business review panel on OSHA’s draft construction back over prevention rule is slated for June 2016. OSHA will focus on emerging technologies, such as cameras and proximity detection systems, to supplement the use of spotters and traffic control plans. Another hot issue is the communication tower construction tower construction rulemaking; OSHA will hold a joint meeting with the FCC soon to coordinate activities. OSHA is currently working on a communication tower “Request for Information” (RFI) comment review and plans to issue a best practices guide in 2016 while the rulemaking is pending.
OSHA’s comment period on its RFI concerning whether to enforce chemical exposures under the General Duty Clause, through control banding or through specific updates to the permissible exposure limits (PELs), closed in October, but the new agenda adds an item for “Revocation of Obsolete PELs.” There will be a new RFI on the “revocation” concept in July 2016. The agency indicated that if old PELs were rescinded, it could use the General Duty Clause to enforce worker protections instead.
The agency also plans to continue work to fix its cranes and derricks standard, which requires both technical corrections and clarification on the “type and capacity” certification requirements for crane operators. That proposed rule should be made available for public comment in spring 2016.
OSHA is racing to complete its electronic recordkeeping rule, which would require virtually all employers to electronically file their injury and illness information with OSHA on either a quarterly or annual basis (depending on employer size) and the data would be made publically available on OSHA’s website. That rule is over at OMB/OIRA currently for review and has a target release date of March 2016. OSHA also has an ongoing rulemaking to extend its ability to go back past the 6-month statute of limitations and cite employers for violations of its injury/illness recordkeeping requirements for as long as 5 years.
On the enforcement front, the deadline for complying with OSHA’s confined space in construction final rule was extended to January 2016 for residential construction; the rule is already in effect as of August 2015 for all other types of construction worksites.
OSHA also has new “Inspection Weighting” criteria, where more inspection credit is given internally to agency personnel who complete complex inspections such as those involving chemical exposures, workplace violence, musculoskeletal disorders, health care facilities, and facilities involving process safety management. These are often situations where OSHA often issues citations under Section 5(a)(1) of the OSH Act—the “General Duty Clause”—instead of under a codified, specific standard. There is general expectation that those types of citations will increase under the new inspection criteria.
While the weighting system “incentivizes” OSHA personnel to conduct more complex inspections, OSHA says its inspectors are not benchmarked or rewarded based on this factor. If OSHA focuses on these types of inspections more heavily, construction companies that perform new construction, remodeling, demolition, or repair work at such worksites will be more likely to be caught in the scope of wall-to-wall inspections.
OSHA has also published a draft update to its Safety & Health Management Program guidelines, having largely abandoned its attempts to enact an “I2P2” (Injury/Illness Prevention Program) rule during this administration. The comment deadline is February 15, 2016. Whether these guidelines could be enforced down the road through the General Duty Clause (by showing employer recognition of hazards) remains to be seen. The agency also released new Whistleblower Protection Guidelines concerning worker protections and employer obligations under Section 11(c) of the OSH Act, which are open for comment until January 19, 2016.
The impact of OSHA’s “Severe Injury Reporting Rule” that took effect (for federal OSHA-regulated worksites) on January 1, 2015, has been to shift OSHA enforcement activity to a reactive mode—unprogrammed, injury-driven inspections. Unlike in prior years, more than half of all inspections in 2015 were driven by employer reports of fatalities, employee in-patient hospitalizations, amputations, or eye loss cases. The state plan states must all eventually adopt this and some already have implemented the requirement to report all single in-patient hospitalizations, amputations, and eye loss cases within 24 hours. All fatalities, or cases resulting in three or more persons hospitalized, still must be reported to OSHA within 8 hours.
On-site inspections were conducted in about 40 percent of the cases, while 50 percent received “Rapid Response Investigation” letters that require the employer to do a root cause analysis and provide this and other information to OSHA promptly. OSHA will inspect in cases where temporary workers are involved, there is a history of employee hazard complaints, or workers under age 18 are involved.
While OSHA enforcement will continue, regardless of the outcome of the November 2016 elections, if the Democratic candidate prevails, OSHA will be ensured of more continuity in its rulemaking and enforcement policy plans and will no longer have to race to the finish line to complete its portfolio of work. This would result in better rulemaking, because it will be done in a more thoughtful and less pressured manner. ■
About the Author: Adele L. Abrams, Esq., CMSP, is an attorney and safety professional who is president of the Law Office of Adele L. Abrams PC, a ten-attorney firm that represents employees in OSHA and MSHA matters nationwide. The firm also provides occupational safety and health consultation, training, and auditing services. For more information, visit www.safety-law.com.
Modern Contractor Solutions – December 2015
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