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In a move sure to be viewed by some as a prelude to a new ergonomics rulemaking, OSHA has proposed adding a separate column on the OSHA 300 log for employers to record work-related musculoskeletal disorders (MSDs). (The initial 2001 recordkeeping final rule had included an MSD column, but OSHA later deleted that column before the provision ever became effective.) The rule also proposes the same definition of “MSDs” that OSHA had included in the initial 2001 final rule. 

This is an important and fast-moving rulemaking. Interested stakeholders are encouraged to review the proposal thoroughly and provide comments to the agency. The comment period ends on March 15, 2010; the agency is holding a public meeting on the proposal on March 9, 2010.

Under the proposed rule, employers would be required to “check the box” in a separate column on the OSHA 300 log – an “MSD” column – for injuries and illnesses that fit within the agency’s definition. For purposes of the proposal, the agency defines MSDs as:

[D]isorders of the muscles, nerves, tendons, ligaments, joints, cartilage and spinal discs. MSDs DO NOT include disorders caused by slips, trips, falls, motor vehicle accidents, or other similar accidents. Examples of MSDs include: Carpal tunnel syndrome, Rotator Cuff syndrome, De Quervain’s disease, Trigger finger, Tarsal tunnel syndrome, Sciatica, Epicondylitis, Tendinitis, Raynaud’s phenomenon, Carpet layers knee, Herniated spinal disc, and Low back pain.

OSHA also is proposing 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.” OSHA is concerned that this language creates confusion among employers about recording MSDs. OSHA’s proposal attempts to clarify that employers must record abnormal conditions resulting in minor musculoskeletal discomfort, regardless of whether the conditions include objective signs of an injury or illness – so long as all of the other criteria for recording are met.

OSHA describes this proposed rule as a non-significant regulatory action involving only two small costs for employers. OSHA believes that:

1.      employers – and specifically a human resources specialist – will be required to spend 5 minutes familiarizing themselves with the rule; and  

2.      employers will need to spend one additional minute than they currently spend in analyzing an injury or illness to determine whether it should be classified as an “MSD” and put into the correct column on the new recordkeeping forms.

OSHA’s action takes the agency back a decade to the end of the Clinton Administration, when OSHA completed its revised recordkeeping rule with a separate MSD column. Of course, many stakeholders will ask if this move signals a return to the other Clinton Administration rulemaking on MSDs: ergonomics. That rule was rescinded by Congress and President Bush under the Congressional Review Act.  OSHA’s leadership has insisted that this rulemaking is totally separate from any ergonomics initiative and should not be interpreted as a first step to a new ergonomics rule. However matters may develop on ergonomics, this rulemaking is important in its own right as it affects – by OSHA’s own count – approximately 1.5 million workplaces around the country.

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In mid-December 2009, Professor David Michaels was sworn in as the new Assistant Secretary of Labor for OSHA.  Shortly after being sworn in as Assistant Secretary, Professor Michaels gave an interesting speech at the National Institute for Occupational Safety and Health (NIOSH) Going Green Workshop.  The speech was entitled “Making Green Jobs Safe: Integrating Occupational Safety and Health into Green and Sustainability,” and provides a good glimpse as to where he would like to take OSHA in 2010 and beyond.

Professor Michaels’ speech touched on many important issues with respect to occupational safety and health.  In particular, he emphasized the need for workers to be heavily involved in workplace safety, to know the hazards they may face, and to work with their employers to identify and correct hazards in the workplace.  “To get us up to date and move into a safer, healthier future, it’s . . . clear that workers must have a stronger voice in workplace safety than they have now.”  Professor Michaels has always been a strong proponent of safety and health management systems, whereby employers and employees deal proactively with workplace hazards through management leadership, employee participation, hazard identification and control, and system evaluation.  His speech certainly suggests that he will continue to push this as head of OSHA.

Professor Michaels also mentioned OSHA’s “substantial” budget increase, which will “significantly increase the number of inspectors” OSHA puts in the field and the need to update many of OSHA’s outdated standards.  Translation:  the Agency must do everything it can to increase enforcement and engage in smart rulemaking to “to create good standards.”

So what does all this boil down to as a practical matter?  In 2010, employers should expect OSHA to continue to push forward aggressively on enforcement and regulatory initiatives.  Some specific initiatives to watch out for include a:

Final Cranes and Derricks in Construction rule. OSHA staff have been working diligently to finalize a rule addressing hazards associated with crane operations.  If the rule is finalized as proposed, it would be one of the largest overhauls of the nation’s safety regulations in the Agency’s history.  OSHA’s existing rules for cranes in construction take up only a few pages of the Code of Federal Regulations with several cross-references to outdated national consensus standards.  The proposed rule and preamble, in contrast, fill out 250 densely packed pages of the Federal Register.  The proposal contains over 40 separate sections of detailed requirements in such areas as crane assembly, crane operation, inspections, and operator training and certification.

Crystalline Silica Proposed Rule.  Crystalline silica is ubiquitous, comprising a substantial percentage of the Earth’s crust.  OSHA has evidence that exposure to crystalline silica at the current permissible exposure limit (PEL) causes silicosis and lung cancer.  It has been seeking to comprehensively regulate the substance – and reduce the PEL – for over a decade and the Agency seems poised to take that next step in 2010.  Expect a proposed rule on silica to be released sometime this year, as OSHA pushes forward on this longstanding initiative.

New Approach on Ergonomics.  For the last year, various administration officials have stressed the importance of OSHA dealing with WMSDs and ergonomics.  WMSDs still comprise a significant percentage of workplace injuries every year.  WMSDs occur in every industry and in every job throughout the country.

Almost a decade ago, the Clinton Administration finalized an ergonomics standard that would have required all general industry employers to implement an ergonomics program, including the elements of management commitment, employee participation, hazard assessment and control, and medical management.  It also would have mandated “work restriction protection,” which would have required that certain pay and benefits for employees be maintained for periods of time they are out of work due to a work-related injury.

Congress and President Bush disapproved of the final standard, however, and in 2001 it was rescinded under the Congressional Review Act (CRA).  As a result, OSHA is prohibited from promulgating an ergonomics standard that is “substantially the same” as the rescinded standard.  No one knows precisely what those words mean, but they are sure to be hotly debated over the next several months.

OSHA cannot keep avoiding the issue of ergonomics and likely will start to take on the issue in 2010 of what it can and cannot do under the CRA.  It will also likely increase ergonomics enforcement under the General Duty Clause.
 

No matter what happens in 2010, we will keep you up-to-date in this space on the latest OSHA developments.

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In 2009, OSHA emerged from the regulatory and enforcement shell that had shrouded it during the eight years of the Bush Administration. Once confirmed, Secretary of Labor Hilda Solis announced that a “new Sheriff” was in town, who would refocus the Department of Labor – including OSHA – on tough enforcement and aggressive rulemaking. In both areas, OSHA delivered on Secretary Solis’s promise.

            OSHA Increases Enforcement

Many critics of OSHA during the Bush Administration focused on the seeming “emphasis” on cooperative programs and compliance assistance, at the expense of strong enforcement. In response, the Department of Labor announced in 2009 the hiring of hundreds of additional compliance officers (CSHOs) to refocus the Agency on what many believe is its core mission – enforcing occupational safety and health standards. It also initiated or revamped several new National Emphasis Programs (NEPs) to further focus CSHOs on certain safety and health issues and hazards:

Chemical Facilities National Emphasis Program. OSHA initiated a new NEP to focus enforcement resources on process safety management (PSM) hazards in chemical facilities across the country. The NEP, effective July 27, 2009, is billed as a “new approach for inspecting PSM covered facilities” and “allows for a greater number of inspections by better allocation of OSHA’s resources.”  In its instructions to compliance officers regarding the scope of inspections, OSHA emphasizes implementation of the PSM standard over documentation. Paper programs are not enough and OSHA will make sure that employers are fully implementing their PSM programs.

Recordkeeping National Emphasis Program. In the fall of 2009, OSHA launched its long-awaited Recordkeeping NEP. The NEP subjects employers in certain industries to comprehensive injury and illness records reviews. The purpose of the NEP is to ascertain whether, and to what extent, employers are under-recording injuries and illnesses at the worksite. OSHA cites several recent studies in the NEP asserting under-recording by employers on OSHA 300 logs. The NEP is designed to “identify and correct under-recorded and incorrectly recorded cases.” Employers subjected to an NEP inspection will face what are likely to be the most comprehensive inspections in the history of the Agency, with detailed records reviews, interviews of numerous employees, and an analysis of employer safety incentive programs and the effect of these programs on the reporting of injuries and illnesses.

Facilities that Manufacture Food Flavorings Containing Diacetyl National Emphasis Program. After focusing for years on the hazards of occupational exposure to diacetyl in microwave popcorn production, OSHA finally shifted its focus with respect to diacetyl to employers who manufacture food flavorings containing diacetyl. OSHA cites a Centers for Disease Control (CDC) study finding seven cases of bronchiolitis obliterans – a lung disease associated with exposure to diacetyl – in employees working in facilities where flavorings are manufactured. As part of the NEP, OSHA identifies eighty three facilities for inspection and provides detailed guidance for compliance officers to determine the extent to which these facilities are in overall compliance with their obligations.

Perhaps the most eagerly anticipated – and discussed – enforcement initiative was not an NEP at all, but was related to OSHA enforcement procedures for high to very high occupational exposure to the 2009 H1N1 virus. H1N1 captivated the world this past year, and OSHA spent significant resources addressing the occupational safety and health side of the issue. In the spring and summer of 2009, OSHA responded to the H1N1 outbreak by reissuing and repackaging guidance documents on pandemic influenza that had been previously developed. In November, however, OSHA went further and announced inspection procedures for certain high-hazard H1N1 workplaces, including hospitals, emergency medical centers, doctors’ and dental offices and clinics.

A More Active Regulatory Agenda

In 2009, OSHA also set a course for more activity in the rulemaking arena. As with enforcement, many stakeholders were critical of the Bush Administration’s perceived lack of investment in OSHA’s regulatory agenda. The two most significant regulatory accomplishments during the Bush Administration were the final Hexavalent Chromium rule and the final Employer Payment for PPE rule. Many stakeholders, however, argued that even these accomplishments were essentially forced on the Agency by the federal courts. Whether this is true or not, the first year of the Obama Administration saw the announcement of several new regulatory initiatives and what is even more stunning is that these initiatives were announced without a permanent political head of the Agency.

In 2009, OSHA announced new rulemakings for combustible dust hazards and airborne infectious diseases. OSHA also announced that it would revisit in a new rulemaking the definition of work-related musculoskeletal disorders (WMSDs) and how WMSDs should be recorded on OSHA 300 logs. This year OSHA also published its proposed rule to update its hazard communication standard. The hazard communication proposal is one of the most significant OSHA rulemakings in over a decade. OSHA is proposing to revise its hazard communication standard to align it with the United Nations’ Globally Harmonized System of Classification and Labeling of Chemicals (GHS). If finalized, the rule would affect over 5 million business establishments across the country and potentially over 120 million employees. Over 40 million employees would need to be trained on hazard communication under the proposal. OSHA estimates the annualized compliance costs will be almost $100 million for employers. Annualized benefits are estimated to be approximately $850 million.

Finally, in 2009 OSHA made significant progress on its Cranes and Derricks in Construction proposed rule. OSHA’s proposal was over five years in the making. It was developed by the Agency through negotiated rulemaking, whereby representatives of employers and organized labor work together with OSHA to develop a draft rule. Consensus was reached by the negotiated rulemaking committee in 2004. OSHA held public hearings on the proposed rule in 2009 and Agency staff have been busy reviewing comments received with the goal of issuing a final rule in 2010.

All of this in just over 11 months. And yet, this is likely just the beginning for OSHA as 2010 is expected to bring greater enforcement and regulation. 

(More to come on what to expect in 2010 in the next blog post.)

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OSHA has released its long-awaited Fall Regulatory Agenda.  The Regulatory Agenda lists the major rulemaking initiatives that the agency will be pursuing over the next 12 months.  The Agenda also provides a snapshot into the agency's priorities, as we enter the second year of the administration of President Obama.

Longstanding Rulemakings Remain on the Agenda

Most of the rulemaking items that started under President Clinton or Bush remain on OSHA's regulatory agenda.  OSHA continues to push forward with a silica rulemaking, which was initiated in the 1990s.  OSHA predicts that it will publish a proposed rule comprehensively regulating exposure to silica in the workplace in July, 2010.  Other rulemakings that continue to receive OSHA's attention include rulemakings on diacetyl, hazard communication, combustible dust, and tree care operations.

OSHA does announce in this regulatory agenda that it is abandoning its regulatory efforts to update its explosives rule.  This rulemaking had engendered some controversy during the Bush Administration over its proposed provisions related to storage of ammunition.

New Rulemakings Added

OSHA is also adding some new regulatory actions that are sure to be controversial.  First, OSHA is revisiting the issue of the definition of work-related musculoskeletal disorder (WMSD) and the need to identify specifically WMSDs in a separate recordkeeping column.  When OSHA developed its revised recordkeeping rule in the late 1990s, OSHA initially required employers to identify WMSDs separately on OSHA 300 logs.  This requirement, however, was abandoned by the Bush Administration in a follow-up regulatory initiative.  OSHA is now looking once again at the issue and it may reignite some of the controversy associated with past OSHA efforts related to WMSDs and ergonomics.

Second, OSHA is seeking information from the public on the need for a federal Aerosol Infectious Diseases standard.  Specifically, "OSHA is considering the need for a standard to ensure that employers establish a comprehensive infection control program and control measures to protect employees from airborne infectious disease exposures to pathogens that can cause significant disease."  California recently adopted its own aerosol transmissible disease standard and this rulemaking initiative suggests that federal OSHA is exploring the need for such a standard nationwide.

OSHA continues to be active on both regulatory and enforcement initiatives.  We will continue to keep you apprised in this space on the latest OSHA developments.              

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When OSHA launches its recordkeeping National Emphasis Program (NEP) later this year, employers cannot accuse the agency of inadequate warning. Since early March, OSHA officials have signaled the impending NEP. Employers should take time now to review their OSHA recordkeeping logs and practices to prepare for an NEP inspection.

Just last week, OSHA reminded us how seriously it is taking recordkeeping and the perceived underreporting of occupational injuries and illnesses. The Bureau of National Affairs (BNA) reported on remarks by Acting Assistant Secretary of OSHA, Jordan Barab, at the annual American Society of Safety Engineers convention in San Antonio: 

Barab said OSHA’s pending recordkeeping National Emphasis Program will scrutinize companies in high-risk industries that post strikingly low accident and injury rates. OSHA inspectors will look not only at a company’s records but also its safety policies, he said. In particular, agency inspectors will look for companies that discourage their employees from reporting workplace accidents, Barab said. 

The recordkeeping NEP will involve more than just a standard records review. Employer programs that “discourage” employees from reporting workplace accidents will be targeted by OSHA. Unfortunately, OSHA has not provided additional information on the types of programs it is concerned about. However, OSHA had a provision in the Clinton Administration’s ergonomics standard, which was revoked by Congress and President Bush in 2001, which sought to address a similar concern. OSHA required in that rule that employers not develop policies that discourage the reporting of musculoskeletal disorders (MSDs). In the preamble to the final rule, OSHA suggested that the following could run afoul of this provision: 

• Disciplining employees for reporting injuries, without considering the cause of those injuries;
• Establishing incentive programs that offer rewards to employees or groups of employees based on a low number of reported injuries;
• Implementing programs where manager or supervisor performance reviews or bonuses are tied to the number of reported injuries and illnesses; and
• Instituting drug testing programs, when applied to all workers who report MSDs.

Employers should prepare for an OSHA recordkeeping inspection by taking some time to: 

• Review their 300 logs and 301 incident reports for accuracy;
• Ensure their 300 logs reflect information from the 301 incident reports; and
• Compare all their OSHA recordkeeping forms with any workers’ compensation reports and claims.

As important, employers should look at their safety incentive programs and injury and illness reporting procedures for any evidence that these protocols are discouraging employee reports.

Roger Kaplan, a Partner in Jackson Lewis's Long Island office, contributed to this Post. 

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Representative John Conyers  (D-Mich.) has once again introduced in the House of Representatives a bill that would require the Occupational Safety and Health Administration (OSHA) to promulgate a safe patient handling and injury prevention standard. The “Nurse and Health Care Worker Protection Act of 2009” has reignited the debate over the proper approach to ensuring employee and patient safety in the health care industry.

The Health Care Worker Protection Act would require OSHA, not later than one year from the date of promulgation of the bill into law, to publish a proposed rule to require health care employers to, among other things:

• use engineering controls to perform patient lifting and repositioning of patients and to eliminate all manual lifting of patients by health care workers, except where the use of safe patient handling practices is demonstrated to compromise patient care;
• implement a safe patient handling and injury prevention plan including hazard identification, risk assessments, and control measures; and
• obtain input from direct-care registered nurses, health care workers, and employee representatives in developing and implementing the safe patent handling and injury prevention plan, including the purchase of equipment.

The legislation would also provide specific whistleblower protections for any health care worker who in good faith reports a violation or suspected violation of the Act. Under the legislation, OSHA would have to finalize the safe patient handling rule within two years from the date of passage.

This is not the first time that this or similar legislation has been introduced in Congress. However, with the Democratic majorities in both the House of Representatives and the Senate, and Democratic control of the White House, there is greater momentum behind the bill. In addition, the Acting Head of OSHA, Jordan Barab, recently signaled a willingness to consider industry-specific ergonomics rulemakings to deal with high-hazard industries.

Almost a decade ago, OSHA finalized an ergonomics standard that would have required all health care employers to implement an ergonomics program, including the elements of management commitment, employee participation, hazard assessment and control, and medical management. It also would have mandated “work restriction protection,” which would have required that certain pay and benefits for employees be maintained for periods they are out of work due to a work-related injury.

Congress and President George W. Bush disapproved of the final standard, however, and in 2001 it was rescinded under the Congressional Review Act (CRA). As a result, OSHA is prohibited from promulgating an ergonomics standard that is “substantially the same” as the rescinded standard. No one knows precisely what those words mean, but they are sure to be hotly debated over the next several months.

The Acting Head of OSHA recently suggested that OSHA is considering an industry-by-industry approach to ergonomics as an acceptable method to pursue some ergonomics rulemaking in light of the CRA. The health care industry is a prime target for OSHA attention. It has high musculoskeletal injury rates, compared with the average of all of private industry. In addition, just a few years ago OSHA published its “Ergonomics for the Prevention of Musculoskeletal Disorders: Guidelines for Nursing Homes,” which detailed a variety of ergonomic controls for employers to implement to assist in patient handling.

Health care employers stay tuned.  There will certainly be more on ergonomics and the health care industry over the next several months.

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