With the presidential election just a few days away, there is a lot of uncertainty on the future direction of OSHA.  If President Obama wins a second term, employers should expect to see a more active OSHA from the regulatory perspective, as many rules that could impact the employers are poised to be published in either proposed or final form after the election.  From an enforcement perspective, employers should expect to see the same level of active OSHA enforcement in a second-term Obama presidency.  If Governor Romney wins the election, some of the regulatory initiatives currently in the pipeline may be slowed or even scrapped, but undoubtedly some will be proposed or finalized.  Enforcement should also continue at high levels, although some of the enforcement procedures and targeting programs of the Obama administration may be changed.  For example, it is possible that OSHA under a “President Romney” may revisit the Severe Violator Enforcement Program or the Enhanced Administrative Penalties Memorandum published during President Obama’s administration.  Needless to say, Tuesday’s results will be – and should be – followed closely by all.

Below is a description of some of the regulatory initiatives that are primed to move forward under a second term Obama Presidency (and perhaps even a first term Romney Presidency):

Injury and Illness Prevention Program (IIPP).  OSHA’s IIPP rule has been the agency’s oft-stated most-significant regulatory priority.  This initiative has been under development for almost three years.  Over the last several months, OSHA has hinted that it is ready to begin the Small Business Regulatory Enforcement Fairness Act (SBREFA) process for the rule, whereby the agency would solicit input on the rule from affected small business entities; but OSHA has not yet started the process.  It is still unclear what an IIPP rule will look like since OSHA faces the challenge of creating mandatory requirements that can be applied to employers of all sizes and in all industries.  Stay tuned!!

Crystalline Silica.  Employers should also stay tuned for OSHA’s rulemaking to comprehensively regulate crystalline silica.  OSHA’s draft proposed regulatory text for the rule, published in 2002, considered lowering the permissible exposure limit for the substance; implementing extensive “housekeeping” requirements, including prohibiting the practice of dry sweeping; requiring exposure monitoring and the establishment of regulated areas; and imposing medical surveillance obligations.  The proposed regulation could have significant impacts on employers and is still under review by the Office of Management and Budget (OMB), where it was first submitted in February, 2011.  This is a proposed rule that could certainly be affected by the outcome of the election.

Stricter Injury and Illness Reporting Obligations.  OSHA has also proposed requiring employers to report workplace amputations to the agency within 24 hours, as well as all in-patient hospitalizations within 8 hours.  Existing recordkeeping rules require employers to report in-patient hospitalizations of 3 or more employees to OSHA within 8 hours.  Any workplace fatality would continue to be reportable, as well.  OSHA’s proposed rule that would require employers to “check” a separate column on the OSHA 300 Log is also still out there and potentially ready to go final.  Should President Obama win a second term, employers should not be surprised if these rules are finalized in pretty short order.
 

As Hurricane Sandy bears down on the East Coast, we wanted to highlight some key sources of information for hurricane preparedness and response:

Employers affected by the storm should review their emergency preparedness plans and these sources of information to ensure their employees are fully protected. 

In a memorandum to Regional Administrators, OSHA’s Director of Enforcement Programs (DEP) has set forth the criteria for employers to be removed from the Severe Violator Enforcement Program (SVEP).  The memorandum stems from a review of the SVEP undertaken by DEP in fiscal year 2011.

Under the memorandum, an employer may be removed from the SVEP after a period of three years from the date of final disposition of the SVEP inspection citation items.  In addition, employers must have "abated all SVEP-related hazards affirmed as violations, paid all final penalties, abided by and completed all settlement provisions, and not received any additional serious citations related to the hazards identified in the SVEP inspection at the initial establishment or at any related establishments."

Final approval of removal from the SVEP is at the discretion of the Regional Administrator or his/her designee (except when national corporate-wide settlements are involved).  The memorandum also calls for an additional follow-up inspection before removal finally occurs.

Since the SVEP was issued, employers have questioned the agency on whether and how an employer in the SVEP can be removed from the program.  This memorandum provides further guidance to employers, but still leaves discretion to the Regional Administrators or Area Directors.

All employers should take note of this new memorandum.  

OSHA has recently announced two new “initiatives” aimed at improving compliance in traditional "summer-time" areas of concern for the agency:  heat illness and falls.

Heat Illness

Since 2009, OSHA has placed a priority on the prevention of heat illness, especially in the hot summer months.  The most recent campaign is intended to raise the awareness among workers and employers about the hazards of working outdoors in hot weather by creating a webpage devoted exclusively to work-related heat illness. While OSHA does not have a standard dealing directly with heat stress, OSHA could potentially utilize the General Duty Clause of the Occupational Safety and Health Act of 1970 to cite employers for failing to take adequate steps to protect employees from heat illness. Employers should review their policies and practices to ensure that they have plans in place to deal with heat stress at their worksites.

Preventing Falls in Construction

Similarly, OSHA recently launched a webpage devoted to preventing falls in the construction industry.  OSHA provides educational and other materials to employers on ways to prevent falls in construction, train employees, and plan jobs safely. Fall hazards are also a major focus of enforcement in the construction industry. It is incumbent upon construction employers to ensure full compliance with OSHA’s standards related to fall protection.

OSHA has announced a plan to establish a Whistleblower Protection Advisory Committee to advise and make recommendations to OSHA Assistant Secretary Michaels on ways to improve OSHA’s administration of its whistleblower protection enforcement program.  Click here for a link to a full article on the new Committee.

It has been approximately two years since the Department of Labor announced its “Plan/Prevent/Protect” compliance strategy, with the basic goal to “ensure employers and other regulated entities are in full compliance with the law every day, not just when Department inspectors come calling.”  We thought that it would be interesting to take a quick look back over the last two years to see how some of the key DOL agencies did in fulfilling their promised action items.  The attached Special Report looks back at the activities of OSHA, OFCCP, and the Wage-Hour Administration under Plan/Prevent/Protect. 

Vacating citations issued by OSHA for violations of the Occupational Safety and Health Act’s recordkeeping requirements, the U.S. Court of Appeals for the District of Columbia Circuit has held that the citations were untimely and barred by the Act’s six-month statute of limitations.  Click here for a full discussion of the decision.