OSHA Law Blog : Occupational Safety Lawyer & Attorney : Jackson Lewis Law Firm : Health, OSHA Compliance

Just weeks after announcing that it would be initiating the Small Business Regulatory Enforcement Fairness Act (SBREFA) process for its IIPP rule, the Agency recently announced that there would be an additional delay in starting the process.  IIPP has the potential to be the most significant OSHA rulemaking in over a decade, potentially requiring all employers to implement a safety and health program at their worksites.  The Agency cited delays in preparation of the SBREFA package for the hold-up in starting the process.  OSHA gave no indication in its notification of when the process will be initiated, so stakeholders should "stay tuned" and monitor OSHA's website for developments.

While IIPP is delayed, OSHA's final rule updating its Hazard Communication standard to align with the Globally Harmonized System of Hazard Communication may be on the verge of publication.  The final rule was just recently cleared by the Office of Management and Budget, the final regulatory step before publication in the Federal Register.  OSHA could publish the final rule within the next month.

The rule could affect over 5 million business establishments across the country and potentially over 120 million employees. Over 40 million employees may need to be re-trained. In the proposed rule, OSHA estimated the annualized compliance costs will be almost $100 million for employers. Annualized benefits were estimated to be approximately $850 million.  Attached is a Special Report on the proposed rule that summarizes its key provisions.  While the final rule will differ from the proposed rule, the Special Report provides background information on the Agency's approach to the rulemaking generally.

We will continue to keep stakeholders apprised of developments with these rulemakings.       

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OSHA is poised to release to the public its initial regulatory approach to its Injury and Illness Prevention Program (IIPP) rule. OSHA has announced that it will begin the Small Business Regulatory Enforcement and Fairness Act (SBREFA) process for its IIPP rule, at which time the Agency will likely make public a draft regulatory text and some preliminary analyses of the costs and benefits of the rule.

The Agency’s oft-stated most significant regulatory priority has been under development in the Agency for over two years. Even so, most stakeholders have no idea what a federal IIPP rule will look like. Will it look like California’s IIPP rule? Or will it take some other approach to requiring employers to establish safety and health management systems in the workplace?

Most safety and health management systems have some form of the following elements, implemented to proactively address hazards in the workplace:

• Management Leadership
• Employee Participation
• Hazard Identification and Prioritization
• Hazard Control
• Education and Training
• Evaluation and Continuous Improvement

OSHA’s draft proposed rule will likely integrate some form of these elements. Of course, the real challenge for OSHA is to take these broad concepts and turn them into mandatory requirements, which can be broadly applied to employers in all industries and of all sizes. OSHA must also attempt to craft a rule that does not disrupt existing employer programs that may be working. However OSHA deals with these issues, it is important for stakeholders to watch OSHA’s rulemaking closely and actively engage OSHA on what will work and not work with respect to a proposed IIPP rule.

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OSHA's Spring 2011 Regulatory Agenda reiterates OSHA's earlier commitment to initiate the Small Business Regulatory Enforcement Fairness Act process for its Injury and Illness Prevention Program (IIPP) rule in June of this year.  Now midway through July, it is unclear when OSHA will release to the public its initial regulatory approach to the IIPP rule.  The Agency’s oft-stated most significant regulatory priority has been under development in the Agency for over two years and, yet, most stakeholders have no idea what a federal IIPP rule will look like.  Will it look like California’s IIPP rule?  Or will it take some other approach to safety and health management systems in the workplace?

Most safety and health management systems have some form of the following elements,  implemented to proactively address hazards in the workplace:

• Management Leadership
• Employee Participation
• Risk Identification and Prioritization
• Hazard Control
• Education and Training
• Evaluation and Continuous Improvement

Of course, the real challenge for OSHA is to take these broad concepts and turn them into mandatory requirements, which can be broadly applied to employers in all industries and of all sizes.  OSHA must also attempt to craft a rule that does not disrupt existing employer programs that may be working.  However -- and whenever -- OSHA deals with these issues, it is important for stakeholders to watch OSHA’s rulemaking closely and actively engage OSHA on what will work and not work with respect to a proposed IIPP rule.   

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OSHA has launched a survey of safety and health practices of private sector employers "as a tool toward better designing future rules, compliance assistance and outreach efforts."  OSHA is surveying as many as 19,000 employers nationwide of all sizes and in all industries.  Recipients of the survey can complete it either in hard copy form or electronically.

It is expected that the "Baseline Survey of Safety and Health Practices" will be used primarily to compile information about existing employers' use of safety and health management systems, including who manages safety and whether annual evaluations are undertaken.  This, in turn, will be helpful to the Agency in pursuing its Injury and Illness Prevention Program (IIPP) rule.  It also may be used to support other OSHA rulemakings in the future.  OSHA has stated that the survey will not be used for enforcement and will be anonymous.   

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