OSHA Issues Proposed Interpretation of Feasible Controls in Noise Standards

Posted on October 25, 2010 by Brad Hammock

OSHA has issued a proposed interpretation of the terms "feasible administrative or engineering controls" as they are used in OSHA's general industry and construction occupational noise standards.  Under these standards, employers must first implement feasible administrative or engineering controls before utilizing personal protective equipment (PPE) to reduce employee exposures.  According to OSHA, the proposed interpretation will "clarify that feasible as used in the standard has its ordinary meaning of capable of being done."  This proposed interpretation will have a major impact on all general industry and construction employers, who are encouraged to submit comments to the Agency on the proposed interpretation.  Comments are due by December 20, 2010.

The proposed interpretation would alter existing Agency enforcement policy for determining when an employer may utilize PPE to protect employees from noise exposures, as opposed to relying on engineering and administrative controls.  Existing policy provides that employers will be cited for not implementing certain engineering or administrative controls when hearing protectors are ineffective or the cost of such controls are actually less than the cost of implementing a full hearing conservation program.  OSHA is proposing to eliminate this framework and consider engineering and administrative controls to be feasible so long as they will "not threaten the employer's ability to remain in business or if the threat to viability results from the employer's having failed to keep up with industry safety and health standards."

Aside from the importance of the issue to many stakeholders, by issuing the proposed interpretation in the Federal Register, OSHA is further elevating its status.  It is incumbent upon all stakeholders to comment on this proposed interpretation so that OSHA has the best information available to it when determining how to approach this important issue.   

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OMB Extends Review of OSHA's MSD Column Rule

Posted on October 8, 2010 by Brad Hammock

In a surprise and rare move, the Office of Management and Budget (OMB) has extended its review of OSHA's Occupational Injury Recording and Reporting Requirements Rule -- Musculoskeletal Disorders (MSD) Column.  The rule, originally proposed this year, would require employers to “check a box” in a separate column on the OSHA 300 log – an “MSD” column – for injuries and illnesses that fit within the Agency’s proposed definition.  OSHA also proposed to remove existing language from its recordkeeping compliance directive that “minor musculoskeletal discomfort” is not recordable as a restricted work case “if a health care professional determines that the employee is fully able to perform all of his or her routine job functions, and the employer assigns a work restriction for the purpose of preventing a more serious injury.” 

OMB received OSHA's final rule to review on July 14, 2010.  Many stakeholders expected a quick review by OMB of the rule, followed by immediate publication in the Federal Register.  In order for the rule to go into effect on January 1, 2011, OSHA needs to provide the states adequate time to incorporate the new rule into their state plan programs.  Thus, many anticipated publication as early as this summer.

OMB, however, is clearly taking a hard look at OSHA's rule.  OMB rarely extends its reviews under Executive Order 12866 and this signals that OMB has issues with the rule, or its underlying economic analysis, that it has yet to resolve with OSHA.

We will continue to keep you informed of developments wth the rule and other OSHA recordkeeping initiatives.

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