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.     

With the recent increase in OSHA enforcement activity, many employers are being forced to answer the question:  "If an OSHA compliance officer visits my workplace, is my company prepared?"  Hopefully, for most employers the answer is a resounding "yes."  However, for employers who are not so sure about their ability to handle an OSHA inspection, the start of the new year provides an excellent opportunity to refocus on safety and health.  This powerpoint can help employers in this process, by summarizing key steps to take to prepare for and handle an OSHA inspection.     

In a recently issued 2009 Enforcement Summary, OSHA claims that violations issued against employers in fiscal year 2009 were up 2.8% since fiscal year 2005.  Furthermore, the total number of serious and repeat violations were up 10.9% and 17.5%, respectively, over the same five year period.  According to the Agency, "OSHA is committed to refocusing OSHA’s priorities through developing and enforcing standards to protect workers and moving toward tougher citations and penalties to provide a powerful incentive to respect their workers, integrate protection into business operations, and make prevention a priority."

While OSHA enforcement is generally up when compared to fiscal year 2005, a closer review of the enforcement statistics shows a more complicated picture.  When the 2009 numbers are compared to fiscal year 2007, for example, total violations were higher in fiscal year 2007 than in fiscal year 2009.  Furthermore, willful violations are down significantly (46.3%) since 2005.  Criminal referrals are also down from fiscal year 2006.

So what does all this mean for employers?  While there is some deviation in the overall numbers, there is little doubt that enforcement remains a top priority of OSHA — along with an increase in regulatory activity.  It is incumbent upon employers to thus proactively adress workplace hazards and adopt safety and health management systems to assist in the process.       

OSHA recently announced its Top 10 Frequently Cited Standards for fiscal year 2010.  According to the Agency, "OSHA publishes this list to alert employers about these commonly cited standards so they can take steps to find and fix recognized hazards addressed in these and other standards before OSHA shows up."  The Top Ten are:

  • 1926.451 – Scaffolds
  • 1926.501 – Fall Protection
  • 1910.1200 – Hazard Communication
  • 1910.134 – Respiratory Protection
  • 1926.1053 – Ladders
  • 1910.147 – Lockout/Tagout
  • 1910.305 – Electrical, Wiring Methods
  • 1910.178 – Powered Industrial Trucks
  • 1910.303 – Electrical, General Requirements
  • 1910.212 – Machine Guarding

Employers are encouraged to take note of this list.  These standards relate to commonly found hazards and also point to those hazards that compliance officers focus on in the course of regular inspections.  While each worksite is different, employers should make sure that their safety programs related to these hazards (and standards) are reviewed and fully compliant. 

With the holiday shopping season fast approaching, OSHA is reminding retail employers of steps to take to prevent employee injuries due to large crowds during Black Friday and other sales events.  OSHA has reissued its "Crowd Management Safety Tips for Retailers," which provides guidance to employers to help prevent injuries during the coming months.  OSHA recommends that employers establish a system for crowd management that includes the following main elements:

  • Planning.  Create a detailed staffing plan and train employees in the plan and its implementation.  Emergency response should be considered and appropriate individuals within the organization designated for any emergency response effort.
  • Pre-Event Setup.  Set up barricades or rope lines to control crowds and have employees keep in communication by radios or other means.  Designate employees to communicate with shoppers and others and to explain safety precuations taken.  Consider implementing other crowd management techniques, such as numbered tickets or wristbands.
  • During the Sales Event.  Ensure that employees know when the doors are about to open.  When the maximum occupancy is reached, prohibit additional customers from entering.  Place uniformed guards at entrances, if necessary.
  • Emergency Situations.  Do not block or lock any exit doors and employees should be told to listen to first responders.  First aid kits and AEDs should be available.

There is no OSHA standard regulating crowd management.  But employers are encouraged to take note of OSHA’s guidance and ensure their safety and health systems consider potential hazards during the holiday shopping season.     

OSHA has issued a proposed interpretation of the terms "feasible administrative or engineering controls" as they are used in OSHA’s general industry and construction occupational noise standards.  Under these standards, employers must first implement feasible administrative or engineering controls before utilizing personal protective equipment (PPE) to reduce employee exposures.  According to OSHA, the proposed interpretation will "clarify that feasible as used in the standard has its ordinary meaning of capable of being done."  This proposed interpretation will have a major impact on all general industry and construction employers, who are encouraged to submit comments to the Agency on the proposed interpretation.  Comments are due by December 20, 2010.

The proposed interpretation would alter existing Agency enforcement policy for determining when an employer may utilize PPE to protect employees from noise exposures, as opposed to relying on engineering and administrative controls.  Existing policy provides that employers will be cited for not implementing certain engineering or administrative controls when hearing protectors are ineffective or the cost of such controls are actually less than the cost of implementing a full hearing conservation program.  OSHA is proposing to eliminate this framework and consider engineering and administrative controls to be feasible so long as they will "not threaten the employer’s ability to remain in business or if the threat to viability results from the employer’s having failed to keep up with industry safety and health standards."

Aside from the importance of the issue to many stakeholders, by issuing the proposed interpretation in the Federal Register, OSHA is further elevating its status.  It is incumbent upon all stakeholders to comment on this proposed interpretation so that OSHA has the best information available to it when determining how to approach this important issue.   

In a surprise and rare move, the Office of Management and Budget (OMB) has extended its review of OSHA’s Occupational Injury Recording and Reporting Requirements Rule — Musculoskeletal Disorders (MSD) Column.  The rule, originally proposed this year, would require employers to “check a 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.  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.” 

OMB received OSHA’s final rule to review on July 14, 2010.  Many stakeholders expected a quick review by OMB of the rule, followed by immediate publication in the Federal Register.  In order for the rule to go into effect on January 1, 2011, OSHA needs to provide the states adequate time to incorporate the new rule into their state plan programs.  Thus, many anticipated publication as early as this summer.

OMB, however, is clearly taking a hard look at OSHA’s rule.  OMB rarely extends its reviews under Executive Order 12866 and this signals that OMB has issues with the rule, or its underlying economic analysis, that it has yet to resolve with OSHA.

We will continue to keep you informed of developments wth the rule and other OSHA recordkeeping initiatives.

OSHA has proposed to make significant changes to its On-site Consultation program.  This popular program, in OSHA’s own words, "provides well-trained professional safety and health personnel, at no cost and upon request of an employer, to conduct worksite visits to identify occupational hazards and provide advice on compliance with OSHA regulations and standards."  Consultation services are provided through cooperative agreements between the states and OSHA — with federal funding.  Countless small employers, in particular, have taken advantage of the program to proactively address safety and health hazards in their worksites.

One of the benefits of the On-site Consultation program is that employers who willingly participate in the program may be eligible for deferrals from OSHA programmed inspections, such as those conducted per OSHA’s Site Specific Targeting Program.  By doing so, OSHA is rewarding companies who are in good faith addressing safety and health hazards and implementing a safety and health management system.

In this proposed rule, OSHA is proposing to limit the period of time that employers may benefit from the programmed inspection deferral — to only one year.  The proposal also provides for a further exception from the programmed inspection exemption for "other critical inspections" the Assistant Secretary of OSHA determines are necessary.  The proposal does not clearly define what are meant by "critical inspections," but notes that the exception would be applied rarely.

Employers are encouraged to submit comments on this proposed rule, particularly those employers that may have benefited from the program.  In particular, OSHA is seeking comments on the extent to which these changes would affect the willingness of employers to participate in the On-site Consultation program.  Comments are due by November 2, 2010.

              

It has been several months since OSHA unveiled its Severe Violator Enforcement Program (SVEP), which focuses OSHA’s enforcement resources on employers "who have demonstrated indifference to their OSH Act obligations by committing willful, repeated, or failure-to-abate violations."  This is the time for employers to ramp up their safety and health efforts to ensure that they do not become a "severe violator" in OSHA’s view.  Here is a powerpoint presentation that recaps OSHA’s SVEP and provides some key advice to avoid being in the program.  It also provides a breakdown of OSHA’s initiative to increase civil penalties administratively.  With a particularly active OSHA enforcement program, employers must continually focus on their safety and health programs to ensure they are fully compliant with OSHA standards.       

In what is certainly one of the most active periods in OSHA’s history, the Agency is using every tool at its disposal to ensure that employers are in compliance with OSHA’s standards and rules.  OSHA is pushing forward with new rules, enforcement initiatives, interpretive letters, media initiatives, and so forth, at an unprecedented pace.

A review of OSHA’s website demonstrates the variety of means the Agency is utilizing to handle safety and health issues.  New rules such as OSHA’s Cranes and Derricks in Construction rule are highlighted, as are the several new enforcement measures implemented by the Agency:  the Severe Violators Enforcement Program; the Administrative Penalty Bulletin; and the OSHA Training Standards Policy.  In a somewhat new approach, the website also highlights "Industry Alerts," which are alerts of safety and health issues focused on specific industries.  And these initiatives do not even include the various news releases and multi-media presentations available on the website, or the 36 letters of interpretation that have been issued so far this year.

Employers must match this activity level and be especially vigilant to ensure that they know the latest positions of the Agency on safety and health issues relevant to their worksites.