The current economic climate in Washington, D.C., is uncertain at best. Last minute approval of the federal budget in late December would seem to offer a little more insight into how the Occupational Safety and Health Administration (OSHA) will operate in 2014. However, the Congressional Appropriations Committees still need to determine how much each agency will receive. It’s doubtful OSHA will see any increases from what it was given last year. Regardless, sequester cuts should be eliminated. OSHA will then need to determine what to do with its proposed actions with the money allocated to the agency. In general, while funding may cause minor changes in strategy, it’s unlikely there will be any major shift in in policy. The following is a look at what has been proposed in 2014.
One minor strategic shift is that OSHA plans to conduct fewer overall inspections in 2014, allowing the agency to dedicate more resources to conducting complex investigations and executing a greater number of health inspections.
In 2013, OSHA anticipated that it would complete approximately 41,000 inspections. For the current year, it expects to conduct a bit more than 39,000. While this philosophy is contradictory to past thinking, the agency defended itself, stating, “OSHA has always operated under the assumption that ‘more inspections are better’ as the more establishments inspected, the greater OSHA’s presence, and hence the greater the agency’s impact. … The problem with this model is that not all inspections are created equal, as some inspections take more time and resources to complete than the average or typical OSHA inspection.”
President Barack Obama’s overall, fiscal year (FY) 2014 budget request for OSHA includes $570.5 million. A little more than $104 million of that is intended to help fund state occupational safety and health programs. This request is slightly higher than the FY 2013 enacted appropriation provided through continuing resolution from the FY 2012 amount of $564.8 million. The increased budget request includes $5.9 million in additional whistleblower protections and $2 million in decreases to compliance assistance programs.
The Obama administration believes that this budget would adequately help OSHA achieve its top policy priorities in the coming year. As mentioned, it is unlikely that the monies allocated will meet OSHA’s expectations. And, as we have all experienced, they will be stuck with the proverbial situation of having to do more with less.
One of OSHA’s priorities continues to be the implementation of an Illness and Injury Prevention Program (I2P2) requirement for the private sector. In fact, Assistant Secretary of Labor for OSHA David Michaels called an I2P2 standard OSHA’s “highest-priority regulatory proposal.” So, the future of I2P2 is uncertain as long as the budget is in question.
However, OSHA has instituted initiatives and incentives to encourage employers to adopt safety and health programs (e.g., the voluntary Safety and Health Management Program guidelines and national and international consensus standards) on their own. These programs can all be construed as some form of I2P2, as they share a common goal to help employers minimize injuries and illnesses that occur at the workplace. Unfortunately, these initiatives don’t provide the complete benefits that a comprehensive I2P2 requirement offers.
Over the past several years, OSHA has been developing a standard through the federal rulemaking process that would mandate an I2P2 requirement for private-sector businesses. Despite its struggles with funding and inability to meet a self-imposed deadline for the issuance of an I2P2 requirement in January, the Obama administration is hopeful that it will come to fruition sometime during the next 12 months.
A silica standard may take the place of I2P2 as a top priority for completion. Last summer, OSHA issued a long-awaited, proposed rule, featuring modifications to the existing standard addressing crystalline silica exposure limits and other silica-related hazards. Michaels believes, if enacted, the rule will save lives and prevent many respiratory illnesses and health problems that employees encounter when working with silica.
Proposed changes include periodic measuring for silica and medical testing requirements, including chest X-rays and lung function tests on all employees exposed to silica for more than 30 days per year. Other prospective modifications include more stringent monitoring practices and the implementation of certain engineering controls to reduce silica levels. The most significant proposed change, though, pertains to a reduction in the permissible exposure limit (PEL) of 100 micrograms of silica dust per cubic meter to 50 micrograms for all general industry.
OSHA is asking for feedback on the new rule. The agency had initially imposed a December 2013 deadline for comments. However, as a result of pressure from the National Electrical Contractors Association and a number of other industry associations, OSHA has extended the comment period by 30 days. This means that industry feedback will be due in January, and public hearings to review all comments can be expected to begin sometime around the beginning of April. It is also expected that OSHA will issue a similar proposed rule on beryllium exposure limits in the near future.
In early 2014, OSHA also hopes to unveil its revamped Electric Power Transmission and Distribution, Electrical Protective Equipment Standard. According to the agency, it has “revised the construction-industry standard addressing the safety of workers when they build electric power transmission and distribution lines.” Furthermore, OSHA noted that, “it will amend the corresponding standard for general industry so that requirements for work performed during the maintenance of electric power transmission and distribution installations are the same as those for similar construction work.” OSHA believes that these changes will save as many as 50 lives every year.
The revisions target four major areas that include exchange of information between host employers and contractors, fall protection, minimum approach distances, and electric arc protection to accomplish that goal. Unfortunately, the standard is long overdue, and the release date is not firm. Despite basic support from the construction industry—both labor and management—OSHA had not been able to resolve the minor differences among the stakeholders to the satisfaction of the Office of Management and Budget. It is believed this would be finally done by 2014 so that the standard can go into effect this year.
According to OSHA’s Spring 2013 Regulatory Agenda, the agency will also issue a final or proposed regulatory modification to confined-space, recordkeeping, combustible-dust, blood-borne pathogens and chemical-exposure-limit requirements in the coming year. Many of these items were a priority for 2013. However, these rules have been on the agenda for a long period and have yet to be fully realized.
As an update, OSHA is conducting a review of the combustible-dust hazard standard. The agency has noted that “the U.S. Chemical Safety Board completed a study of combustible-dust hazards in 2006, which identified 281 combustible-dust incidents between 1980 and 2005 that killed 119 workers and injured 718.” OSHA’s permissible exposure limits for chemicals are often considered outdated. They were originally adopted in 1971.
Other lingering issues include OSHA’s desire to release a series of final rules pertaining to whistle-blower complaints. Those likely won’t be issued until later this year.
Among the final rules that OSHA anticipates releasing in the coming year, and may have success with, are “Walking Working Surfaces and Personal Fall Protection Systems—Slips, Trips and Fall Prevention” standards. These standards will address fall hazards and update fall protection and personal protective equipment (PPE) requirements to represent current technology.
Additionally, OSHA anticipates releasing a final rule on the use of vertical tandem lifts in April 2014. In 2011, a U.S. Court of Appeals deemed two sections of the existing rule were technologically infeasible. As a result, OSHA plans on briefly reopening the record to address the two discrepancies.
A proposed rule that came out in November 2013 would change the reporting procedures of injuries and illnesses in the workplace for certain industries. It would require specific companies, with 20 or more employees, to electronically submit their summary of work-related injuries and illnesses to OSHA once annually.
“With the changes being proposed in this rule, employers, employees, the government and researchers will have better access to data that will encourage earlier abatement of hazards and result in improved programs to reduce workplace hazards and prevent injuries, illnesses and fatalities,” Michaels said.
OSHA is actively collecting input on this proposal, and the public comment period for the rule closes on Feb. 6, 2014.
Last spring, OSHA issued a final standard for cranes and derricks. However, the rule was challenged by the Edison Electric Institute for issues related to digger derricks. While an out-of-court settlement created a memorandum of understanding related to enforcement, remaining issues will likely cause OSHA to open the process up again to hear and review any proposed corrections and/or amendments to the rule.
OSHA is also in the process of implementing a grandfather clause for companies to conform to safety signage requirements. Regulations issued in 2011 changed the appearance of hazard warning signs. However, many businesses continued to use signs that met the old standards.
With the expectation that the Appropriations Committee will leave OSHA’s budget flat going from last year to the current year, and the reality of the negative reverberations caused by the 2013 sequester and government shutdown, the concern for protecting worker safety and health has become very real. The federal government and OSHA will truly have their work cut out for them in accomplishing their aggressive policy priorities and occupational safety and health goals for the coming year.
Currently, 27 states have and operate their own occupational safety and health programs, and the federal government has provided nearly half of all state program costs. As these costs rise, the federal government has not been able to maintain the same support. In turn, we are beginning to see states cut funding to safety and health programs. If this trend continues, we could see an increase in on-the-job injuries, illnesses and fatalities. On a positive note, job-related fatalities appear to be on the decline, from 4,690 in 2010 down to 4,383 in 2012.
Let’s hope that, with or without the help of OSHA worker/employer hazard awareness, the creation of safe working environments, the practice of safe working habits and self-policing continue to lower these figures.
OSHA’s new Electric Power Transmission and Distribution, Electrical Protective Equipment Standard will target four major areas: exchange of information between host employers and contractors, fall protection, minimum approach distances, and electric arc protection to accomplish that goal.