OSHA Anticipates Issuing Several New Final Rules in Early 2016

On November 20, 2015 the fall semiannual regulatory agenda for federal agencies was published. This Regulatory Agenda provides a complete list of all regulatory actions that are under active consideration for promulgation, proposal, or review and covers regulatory actions for over 60 federal departments, agencies, and commissions.

The regulatory agenda for the Department of Labor includes a total of thirty one regulatory entries for OSHA specific actions. Fourteen of these regulatory actions are in the pre-rule stage where the agency is gathering relevant information. Six agency actions are in the proposed rule stage and another eleven of these specific actions are in the final rule stage.

The number of pre-rulemaking initiatives doubled since the spring regulatory agenda including new initiatives for Lockout-Tagout, Powered Industrial Trucks, such as forklifts and a new initiative for Tree Care. For Lockout-Tagout and Powered Industrial Trucks updates OSHA will issue Requests for Information in the fall of 2016.

OSHA anticipates holding a stakeholder meeting in June 2016 for potential rulemaking in the tree care industry. The regulatory agenda states, “There is no OSHA standard for tree care operations; the agency currently applies a patchwork of standards to address the serious hazards in this industry. The tree care industry previously petitioned the agency for rulemaking and OSHA issued an ANPRM (September, 2008); but the issues was later removed from the Regulatory Agenda due to insufficient resources.   Tree care continues to be a high-hazard industry. Stakeholder meetings will allow the agency to update the record and proceed to a future rulemaking.”

It also appears that OSHA plans to bring in the new year with several final rules early in 2016, including Silica in February, Improve Tracking of Workplace Injuries and Illnesses in March and Walking Working Surfaces in April.

Regulatory actions under consideration by OSHA include:



 Walking Working Surfaces – General Industry (Subparts D and I)  Final Rule in April 2016


 Improve Tracking of Workplace Injuries and Illnesses  Final Rule in March 2016


Occupational Exposure to Crystalline Silica Final Rule February 2016
 Occupational Exposure to Combustible Dust  Initiate SBREFA August 2016
 Crane Operator Qualification in Construction  Notice of Proposed Rulemaking in March 2016
 Clarification of Employer’s Continuing Obligation to Make and Maintain Accurate Records of Each Recordable Injury and Illness  Agency Review of Public Comment until December 2015.
 Process Safety Management and Prevention of Major Chemical Accidents  Complete SBREFA in April 2016
 Tree Care Standard  Stakeholder Meetings June 2016



OSHA Law Blog Live: OSHA’s Regulatory Agenda is Out!

Season 1, Episode 3- 3 mins 16 sec

Listen to this brief podcast to find out the estimated dates for OSHA’s final rules on crystalline silica and electronic recordkeeping.


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OSHA Seeks Comments on its Updated Voluntary Safety and Health Program Management Guidelines

This week OSHA announced that it is seeking public comment on its updated voluntary Safety and Health Program Management Guidelines (OSHA-2015-0018) which it hopes “will provide employers and workers with a sound, flexible framework for addressing safety and health issues in the workplace.” Comments must be received by February 15th, 2016.

The Safety and Health Program Management Guidelines were originally published in 1989. They have been updated to reflect modern technology and practices as well as incorporate approaches taken in two other OSHA programs – the Voluntary Protection Program (VPP) and Safety and Health Achievement Recognition Program (SHARP) – and similar initiatives, for example, ANSI/AIHA Z10.

The guidelines take a proactive approach by helping employers collaborate with their employees in establishing health and safety management plans. OSHA believes that they will be especially useful for small to mid-sized businesses and in multi-employer situations. The Agency emphasizes in the News Release that these guidelines are “advisory only and do not create any new legal obligations or alter existing obligations created by OSHA standards or regulations.”

The 42 page draft guidelines are detailed, informative, clearly presented, and illustrated. They are divided into seven, color-code “core elements”:

  • Management Leadership
  • Worker Participation
  • Hazard Identification and Assessment
  • Hazard Prevention and Control
  • Education and Training
  • Program Evaluation and Improvement
  • Coordination and Communication on Multi-employer Worksites.

Each section provides a brief overview followed by Action Items and steps on “how to accomplish it.” Two appendices follow: Appendix A offers Implementation Tools and Resources which, when viewed online, contain links to various training tools and related OSHA materials; Appendix B, entitled “Relationship of Guidelines to Existing OSHA Standards,” contains color-coded tables detailing the existing standards with their connection to the seven core elements.

OSHA’s updates don’t end with the Guidelines. The webpage itself reflects changes which improve user experience. A countdown clock has been introduced counting down the number of days left in the comment period. Large, colorful icons link to information, easy access to the guidelines, and the option to submit comments directly from the webpage.

OSHA Law Blog Live: Increased Penalties for Employers, Electronic Recordkeeping Proposed Rule Almost Final

Season 1, Episode 2- 8 mins 54 sec

This podcast covers two major developments in workplace safety health and law:

1). OSHA is increasing employer penalties for the first time in 25 years.

2). OSHA’s proposed electronic recordkeeping rule is almost final.

Be sure to listen to this quick podcast to find out the latest details on these 2 issues.


If you have issues trying to play this file, right click on the link and choose “save target as” and save the file locally (such as to your desktop). You should be able to now play the podcast by accessing that locally saved file.

Who is Responsible for Recording Injuries and Illnesses of Temporary Workers?

OSHA is being criticized for a recent interpretation letter clarifying who is responsible for recording illnesses and injuries in what the agency considers a “joint employer relationship” where supervision is shared between a host employer and a staffing agency. In deciding whether the host employer or the staffing agency is responsible for recording injuries and illnesses, the determining factors, according to OSHA’s requirements, are: (1) who supervises the employees on a day-to-day basis, and (2) what constitutes day-to-day supervision. The requirement under 29 C.F.R § 1904.31(a) stipulates:

You must record on the OSHA 300 Log the recordable injuries and illnesses of all employees on your payroll, whether they are labor, executive, hourly, salary, part-time, seasonal, or migrant workers. You also must record the recordable injuries and illnesses that occur to employees who are not on your payroll if you supervise these employees on a day-to-day basis.

Section 1904.31(b)(2) elaborates, stating that the host employer must record the injuries and illnesses of temporary workers if it supervises them on a day-to-day basis.

In the situation described in the interpretation letter, a temporary staffing agency hired, orientated, and trained workers before placing them in jobs as requested by the host employer. The staffing agency controlled all personnel matters, such as compensation, benefits, vacation and leave requests, discipline and reporting injury/illness. Additionally, the staffing agency provided round-the-clock onsite supervision of their employees five days per week. However, the pivotal factor in this situation was that the host employer assigned daily tasks to the temporary workers. According to OSHA’s Frequently Asked Questions for OSHA’s Injury and Illness Recordkeeping Rule (“FAQ”), “Day-to-day supervision occurs when ‘in addition to specifying the output, product or result to be accomplished by the person’s work, the employer supervises the details, means, methods and processes by which the work is to be accomplished.’” (emphasis added).

In the interpretation letter, OSHA concluded that because the host employer assigned daily tasks, it provided the day-to-day supervision of the temporary workers as clarified in FAQ and, therefore, was responsible for recording injuries and illnesses regardless of what the contract required. The interpretation letter further reminds employers of the importance of only recording an injury or illness one time and that in a joint employer situation, the supervising employer has that responsibility. It also noted that “for purposes of OSHA recordkeeping, there cannot be joint day-to-day supervision of temporary workers.”

The Agency has been criticized for its interpretation because for practical purposes the staffing agency controls and supervises its employees. The very fact that workers are only temporarily employed by the host employer, makes it virtually impossible for a host employer to track and maintain contact with the temporary workers, or even to know with certainty that every recordable injury or illness is attributable to work performed during employment for the host company.

The letter dated October 19, 2015 may be read in full here.

Commission to Test OSHA’s Use of Its General Duty Clause for Enforcement

The quasi-judicial body overseeing enforcement actions by the Occupational Safety and Health Administration has handed OSHA another challenge to the agency’s nascent use of guidance documents as the basis for issuing citations, rather than relying on legally promulgated standards. To read the full article, written by Brian Hendrix, click here.

Fainting At Sight of Blood From Work-Related Injury Recordable

In a recent interpretation letter, OSHA responded to an employer’s request for “clarification on whether an employee’s laceration and subsequent fainting at the sight of blood constitutes a recordable case on the OSHA Form 300.”

The employee had scratched his finger on a vinyl saw clamp at work. The injury was minor and the only first aid treatment sought was a Band-Aid. However, while a Band-Aid was being applied by a coworker, the injured employee fainted at the sight of his own blood. When he regained consciousness he explained what had happened, and with no additional injuries, no further treatment was needed.

Under 29 CFR 1904.7(b)(1)(v) “a work-related injury or illness must be recorded if it results in loss of consciousness.” Although the employee’s scratched finger was work-related, the question was whether the subsequent fainting was work-related and therefore recordable. OSHA pointed to Section 1904.5(a) which states, “[the employer] must consider an injury or illness to be work-related if an event or exposure in the work environment either caused or contributed to the resulting condition.” (emphasis added) (There are exceptions for situations where a person’s loss of consciousness is due to a personal medical condition, such as epilepsy, where the loss of consciousness at work is 100% attributable to the medical condition.)

In this incident, if the employee’s only work-related injury had been his scratched finger, it would not have been recordable. However, Section 1904.5(a) applies to his corresponding loss of consciousness as a result of the scratched finger and, therefore, under 1904.7(b)(1)(v), his loss of consciousness is recordable.

The letter can be read in full here.

OSHA Request Public Comment on Whistleblower Guidance Document

Recognizing that “an ounce of prevention is worth a pound of cure”, OSHA introduced last week its draft document, “Protecting Whistleblowers: Recommended Practices for Employers for Preventing and Addressing Retaliation” (available here).  In the draft document, OSHA identifies these five key steps to creating an effective anti-retaliation program:

  1. Ensure leadership commitment
  2. Foster an anti-retaliation culture
  3. Implement a system for responding to reports of retaliation
  4. Conduct anti-retaliation training
  5. Monitor progress and program improvement

OSHA is seeking public comments on this document, which was drafted based on the recommendations made by the Whistleblower Protection Advisory Committee in its document “Best Practices for protecting Whistleblowers and Preventing and Addressing Retaliation”.  The comment period is open through January 19, 2016 and interested parties are advised to read both documents to gain a full understanding of the recommended practices for preventing and addressing retaliation that OSHA is seeking public comment on.  Comments can be posted for OSHA-2015-0025 on Regulations.gov.

Although OSHA believes that these recommended practices are “adaptable to most workplaces, these guidelines may need to be adjusted for such variables as employer size, the makeup of the workforce, and the type of work performed.”  With that in mind, OSHA is specifically looking for feedback on the following:

  1. What, if anything, is missing or not addressed in the document which should be included?
  2. Does it contain any concepts which are hard to understand?
  3. What challenges do you anticipate in implementing the recommendations?
  4. Are there any issues specific to small businesses that need to be addressed?
  5. Are there any industry-specific issues which need to be addressed, possibly in a separate document

Yes…OSHA Penalties Are Going Up!

The Bipartisan Budget Act of 2015 was signed into law by President Obama on November 2, 2015. Section 701, “Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015” requires OSHA to increase its civil penalties for the first time since 1990. A one-time “Catch Up Adjustment” will occur in 2016 with penalties increasing up to a cap of 150%. Increases will be calculated based on the Consumer Price Index (CPI) between 1990-2015 and indications are that increases will be significant but less than the 150% cap. The next step is that Dr. Michaels, Assistant Secretary of Labor for OSHA, will adjust civil monetary penalties through an interim final rulemaking and the adjustment will come into effect by August 1, 2016 at the latest.

The Act contains an exception which allows an Agency to adjust civil monetary penalties by less than the required amount if certain provisions are met and ultimately approved by the Director of the Office of Management and Budget (OMB). However, this seems an unlikely direction given Dr. Michaels statement last month before the Committee on Education and the Workforce, Subcommittee on Workforce Protections:

Simply put, OSHA penalties must be increased to provide a real disincentive for employers accepting injuries and worker deaths as a cost of doing business.

We will continue updates as they become available.