OSHA first proposed a rule on Slips, Trips and Falls in 1990.  Since that time, many employers have taken advantage of this proposed rule in making certain arguments related to Citations issued under Subpart D, the Walking-Working Surfaces regulations.  If you never used this argument, you may be wondering how a proposed rule could help an employer arguing against a Citation issued under a current regulation.  OSHA has long recognized that compliance with a proposed rule, such as OSHA’s Slips, Trips and Falls Rule would be considered a de minimis violation.

See, e.g. https://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=INTERPRETATIONS&p_id=27295

Why is a de minimis a “good” violation to receive?  De Minimis violations carry no penalty or requirement for abatement.  It, in essence, sanctions the status quo of the cited condition.  With the withdrawal of this rule, after being in existence for over 25 years, employers will no longer be able to rely upon compliance with this proposed rule.  The OSHA interpretation referenced above is one of many similar letters that refer to the proposed rule and the de minimis language.  It remains to be seen what OSHA will do with these letters now that there is no longer a proposed rule.  Stay tuned….

Secretary of Labor Thomas Perez and Dr. David Michaels announced during a conference call with non-business stakeholders on December 21st that a draft of the Occupational Safety and Health Administration’s final rule on occupational exposure of crystalline silica was sent to the Office of Management and Budget’s Office of Information and Regulatory Affairs (OIRA) for review. OIRA’s website confirms that the rule is pending review.  The next step is that OIRA has 90 days to conduct its review and OSHA has indicated that it expects the final silica rule will be published in February. However, the review period is often extended well beyond the 90 days. The proposed silica rule was under OIRA review for over two years.

Aside from uncertainty about the date of publication, there is also speculation as to the final provisions. Secretary Perez and Dr. Michaels refused to disclose any details on the content of the final rule or what changes, if any, between the original proposal and the draft final rule existed.

Follow our blog for future updates.

Authored by: Linda Otaigbe

On December 9, 2015 OSHA held a public meeting at the Department of Labor in Washington, D.C. to discuss its revised Safety and Health Program Management Guidelines, which are voluntary guidelines for employers.  Dr. David Michaels, Assistant Secretary of Labor for Occupational Safety and Health, led the meeting and sought input on the guidelines, which are currently in draft form. In addition to seeking general input and guidance from stakeholders, Dr. Michaels explained that OSHA was seeking answers to five key questions as well:

  • What is your experience with safety and health programs or management systems?
  • How well do they work?
  • What were the challenges?
  • What factors made them succeed?
  • How can OSHA’s guidelines be an instrument of change in the culture of the U.S. workplace?

Dr. Michaels also asked stakeholders to let him know if OSHA needs one broad document that addresses all employers or different guidelines that are more specific to different employers.  Dr. Michaels introduced Bill Perry, the Director of OSHA’s Standards and Guidance Directorate, as the key person who spearheaded the efforts to revise and update the guidelines, which were originally published in 1989. Mr. Perry explained that the new guidelines use straightforward and direct language that will be easier for employers to understand. Mr. Perry also explained that the new guidelines take into consideration what OSHA has learned from worker’s compensation injuries and that the guidelines are meant to convince employers to take a proactive approach to reducing hazards. Mr. Perry also discussed how the new guidelines emphasize better communication on multi-employer worksites (in order to better protect temporary employees, contractor employees, and subcontractor employees). He also emphasized that OSHA attempted to identify specific action items that employers can take when using the guidelines.

Several meeting stakeholders expressed support for the guidelines and offered their suggestions on how employers can better implement safety and health programs and on what OSHA can do to make the guidelines better. For example, one attendee explained that safety and health programs do work but require an employer to have a comprehensive safety and health management system in place. He said that selling management is the challenge since senior management must be involved in implementing the safety and health program at the company. He explained that a successful safety and health program needs a qualified champion that can sell it to senior management. Another stakeholder explained that, “Safety and health programs have to engage the workforce.”

During the question and answer portion of the meeting, an attendee asked Dr. Michaels how OSHA plans to promote the guidelines to interested parties who may not be aware of them. Dr. Michaels said that he hoped that the trade associations in attendance would promote the guidelines to their members. He also said that OSHA plans to put the guidelines into the alliance agreements it enters into with trade associations and that OSHA may ask companies to implement safety and health programs at their workplaces as part of settlement agreements.

All interested parties can review the proposed guidelines on OSHA’s website. OSHA is seeking feedback from the public until February 14, 2016 on the guidelines. Interested parties can provide their comments at http://www.regulations.gov, using Docket #OSHA-2015-0018. OSHA will hold a second public meeting in March 2016, which will provide another opportunity for stakeholders to be heard.

The Occupational Safety and Health Administration is asking for stakeholder input on revised safety and health management guidelines that employers may adopt voluntarily. The draft guidelines (SHPM_guidelines.pdf) update the agency’s 1989 safety and health program management guidelines. To read the full article, written by Tressi Cordaro, click here.

OSHA launched a new Preventing Workplace Violence in Healthcare webpage this week.  It contains several new tools and resources to help healthcare facilities combat workplace violence, including:

  • An executive summary for hospital administrators and others who want to learn more about the prevalence of workplace violence in healthcare, associated costs, key risk factors, and what organizations can do to address the problem.
  • A roadmap to preventing workplace violence in healthcare facilities that includes real world examples and solutions.
  • A “big picture” analysis that provides insight on how creating a strong management system and culture of safety can help reduce workplace violence.  This guide also contains an excellent summary of the federal and state requirements.

The webpage is definitely worth checking out if you’re in the healthcare industry and will give you a better understanding of OSHA’s expectations.  It further highlights OSHA’s continued focus on the need to reduce workplace violence in healthcare facilities.  Expect more inspections on workplace violence in healthcare in 2016!  As you prepare for the New Year, take some time now to review your workplace violence policies and programs to see if they have the components that OSHA desires.

Season 1, Episode 4 – 7 mins 5 sec

This podcast discusses OSHA’s updated guidelines on safety and health management programs, which have been put out for public comment.

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.

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:

 RULE

 ANTICIPATED AGENCY ACTION
 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