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

On December 20, 2010, OSHA released its fall regulatory agenda, which sets forth the Agency's current rulemaking priorities.  Over the last several months OSHA has been emphasizing the need to push forward on several regulatory inititatives.  OSHA rulemaking, however, can be painstakingly slow, and OSHA's fall regulatory agenda reflects that.

Of particular note, the issuance of a proposed rule for crystalline silica has been pushed back by the Agency until April of 2011.  OSHA has been working on this regulatory initiative since the mid-1990's.  Prerule actions to initiate the Small Business Regulatory Enforcement Fairness Act (SBREFA) process for OSHA's Injury and Illness Prevention Program rule and Combustible Dust rule are now set for June and April of 2011, respectively.  These rules have been signature initiatives of OSHA over the last several months.  Health rules on beryllium and diacetyl appear to be stuck in the Agency's peer review process.  At the same time, OSHA did not announce any major new regulatory initiatives in the fall agenda.  Two small construction rulemakings were added concerning reinforcing and post-tensioned steel construction and the prevention of equipment backing accidents.

OSHA's regulatory agenda also may be hitting obstacles at the Office of Management and Budget (OMB), which must review all significant OSHA rulemakings.  OMB has extended its review of two OSHA final rules:  General Working Conditions for Shipyard Employment and Occupational Injury and Illness Reporting Requirements-Musculoskeletal Disorders (MSD) Column.  The extended review of the latter rule has effectively prevented it from being implemented in 2011.

All stakeholders should continue to watch OSHA's regulatory agenda over the coming months as the Agency must make significant progress on rulemakings it wishes to finalize by the end of 2012.  We will, of course, continue to keep you apprised of developments.     

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After issuing a flurry of new enforcement initiatives earlier in the year, such as the Severe Violator Enforcement Program and its memorandum administratively increasing civil penalties, OSHA seems to have shifted its focus a little back toward its regulatory program.  OSHA rulemaking often proceeds at a glacial pace, but in the last few months the Agency has issued two significant rulemaking documents:  a proposed rule to revise standards for housekeeping, walking-working surfaces, and fall protection in general industry, and a final rule updating OSHA's Cranes and Derricks in Construction standards.  The latter document will be published in the Federal Register on August 9.

That is not the end, however.  OSHA's final rule updating recordkeeping requirements to add a separate column for recording musculoskeletal disorders (MSDs) is at the Office of Management and Budget for review.  Employers should expect to see it issued in the very near future.    

In OSHA's proposed MSD column rule, published earlier this year, employers would have been 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 proposed definition. For purposes of the proposal, the Agency defined 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 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.” OSHA stated it was concerned that this language created confusion among employers about recording MSDs. 

OSHA's proposal elicited significant comment from employer and employee groups.  While OSHA may make some changes to its proposal in response to these comments, given the speed with which the Agency is proceeding with the rulemaking, employers should anticipate OSHA finalizing a new MSD column on the OSHA 300 log in some form and making that change effective in the beginning of 2011.

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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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