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.       

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.

Employers covered by OSHA’s recordkeeping rule must prepare and post the OSHA Form 300A, “Summary of Work-Related Injuries and Illnesses,” by February 1 and keep the form posted until April 30.  The form must be posted at each establishment covered, in a conspicuous place where notices to employees are customarily posted.

After the form is completed, but before posting, a company executive must certify that “he or she has examined the OSHA 300 Log and that he or she reasonably believes, based on his or her knowledge of the process by which the information was recorded, that the annual summary is correct and complete.”

Under OSHA’s rule, a company executive can be one of the following:  (1) an owner of the company (only if the company is a sole proprietorship or partnership); (2) an officer of the corporation; (3) the highest ranking company official working at the establishment; or (4) the immediate supervisor of the highest ranking company official working at the establishment.

OSHA can cite an employer who fails to post the OSHA Form 300A as required.  Employers should take steps now to ensure they are fully compliant. 

Over the last several months, OSHA has continued – and expanded – its practice of publicizing “Industry/Hazard Alerts” on its web site. These Alerts are designed to notify employers in certain industries of hazards that are of particular concern to the Agency. In part, OSHA is using this technique to ensure industry recognition and knowledge of hazards, which OSHA may attempt to utilize in the context of enforcement proceedings. Employers in the industries targeted must take note of these Alerts and ensure that they are fully compliant with OSHA standards.

The following Industry/Hazard Alerts are listed on OSHA’s web site:

 

As the winter storm season approaches, the Occupational Safety and Health Administration has focused on protecting workers from hazards during winter storm response and recovery operations. OSHA’s new webpage, entitled “Winter Storms,” provides employers with information on preparing for winter storms and identifying and controlling hazards associated with winter storm conditions.

A number of hazards associated with winter storms are addressed:  being struck by falling objects such as icicles, tree limbs, and utility poles; driving accidents due to slippery roadways; carbon monoxide poisoning; dehydration, hypothermia and frostbite; exhaustion from strenuous activity; back injuries or heart attack while removing snow; slips and falls due to slippery walkways; electrocution from downed power lines and downed objects in contact with power lines; burns from fires caused by energized line contact or equipment failure; falls from snow removal on roofs or while working in aerial lifts or on ladders; roof collapse under weight of snow (or melting snow if drains are clogged); and lacerations or amputations from unguarded or improperly operated chain saws and power tools, and improperly attempting to clear jams in snow blowers.

OSHA recommends steps for avoiding or controlling these identified hazards. It also provides links to the Federal Emergency Management Agency, the American Red Cross, the National Weather Service, the National Oceanic and Atmospheric Administration, the Centers for Disease Control and Prevention, and the National Safety Council for additional information.

Employers should review the information provided by OSHA to ensure that they are aware of potential hazards that may affect their employees.

Following its recent interpretation that "therapeutic exercise" constitutes medical treatment for OSHA recordability purposes, OSHA has now stated that an exercise regime recommended by a Certified Athletic Trainer for an employee who exhibits any signs or symptoms of a work-related injury involves medical treatment and is a recordable case.  OSHA made this interpretation in a letter recently posted on its website.

In the same letter, OSHA also provided guidance on whether specific types of exercise constitutes medical treatment.  OSHA states that if a Certified Athletic Trainer "utilizes stretching" to relieve symptoms of a work-related injury or illness, the "stretching" constitutes medical treatment.  OSHA also states that a written home exercise program provided by a Certified Athletic Trainer for signs or symptoms of a work-related injury or illness constitutes medical treatment for recordkeeping purposes.

OSHA’s interpretation is particularly important for musculoskeletal disorders (MSDs), as MSDs are often managed, in part, through exercise regimes.  OSHA does note in the letter that exercise given as a purely precautionary measure (i.e., before the onsite of signs or symptoms) would not qualify for recordability.  However, if an employee experiences any signs or symptoms of a work-related injury or illness — even very early signs or symptoms — exercise given to manage those signs or symptoms would constitute medical treatment for recordability purposes.

Employers should take note of this new interpretation and adjust their recordkeeping practices accordingly.