With the new congress in office, the Occupational Safety and Health Administration can continue to move forward on the Biden administration’s priorities. This includes numerous regulatory actions that missed target dates last year and continued emphasis on the inspection and enforcement front. 

Funding

In the FY 2023 Department of Labor budget request, he sought a 14.5% increase ($701 million) in funding for OSHA. By the end of 2021, OSHA had only 750 inspectors—a record low in the agency’s history. In the administration’s request, that number would have risen by nearly 200. However, even if OSHA initiates hiring new inspectors right away, they probably wouldn’t have been trained and field-ready for a year and a half. 

The Department of Labor also sought to add 75 safety technicians, 63 support personnel in federal enforcement, 63 full-time equivalent (FTE) workers for its whistleblower programs and 60 FTE workers to help with federal compliance assistance. 

Congress enacted an omnibus appropriations bill in December 2022. This increased funding levels from FY 2022, slightly, by a margin of 3.3%. Regardless, the budget should have minimal impact on OSHA’s regulatory priorities for the year.

Potential regulatory changes ahead

OSHA is looking at updating its regulation on respirable silica in the construction industry. Changes under consideration include an expansion of Table 1 for mitigating exposure. A notice of proposed rulemaking (NPRM) was anticipated last August. However, that deadline was missed.

In November, the Construction Industry Safety Coalition (CISC) released a report indicating that OSHA’s silica standard will cost the construction industry $5 billion per year. The agency initially estimated that it would cost just over $500 million per year. 

According to the CISC report, “About 80% of the cost ($3.9 billion/year) will be direct compliance expenditures by the industry such as additional equipment, labor and record-keeping costs. The remaining 20% of the cost ($1.05 billion/year) will come in the form of increased prices that the industry will have to pay for construction materials and building products such as concrete block, glass, roofing shingles and more. OSHA failed to take into account these additional costs to the construction industry that will result from the proposed standard, which will then be passed down to customers in the form of higher prices.” 

An NPRM to modify OSHA’s lockout/tagout (LOTO) regulation was also expected to be released in September, but was never announced. Unfortunately, in November, OSHA also indicated that LOTO was once again one of the top 10 cited violations for FY 2022; there were nearly 2,000 citations for the year. Updates likely to be included in the rulemaking include recent technological advances employing computer­-based controls of hazardous energy, international and national consensus standards, and controls in power plants that may eliminate the need for traditional LOTO or tags-plus systems.

Additionally, OSHA is seeking to update the construction cranes and derricks standard. A NPRM was expected to be announced in June, but that deadline was missed. When it is announced, anticipated changes will correct myriad minor technical errors and potentially modify the digger derrick exemption to include service trucks and similar equipment.

OSHA is in the process of developing a proposed tree care operations standard. According to the Small Business Regulatory Enforcement and Fairness Act (SBREFA), “It would be to protect workers who prune, repair, maintain, or remove trees (tree care), or perform on-site support of tree care, such as workers who pick up and dispose of limbs or branches or use the on-site equipment. A potential standard would address the safe use of tools and equipment associated with tree care and on-site support of tree care.” 

The SBREFA collected preliminary information for the creation of a new regulation in 29 CFR Part 1910: Tree Care Operations. However, line-clearance tree trimming covered by Section 1910.269 will not be included.

Modifications to modernize the Process Safety Management (PSM) and Prevention of Major Chemical Accidents standard are at the prerule stage. It is expected to incorporate lagging and leading indicators into the evaluation of a PSM program. OSHA has concluded an RFI and the SBREFA has completed preliminary legwork for the rulemaking process. However, there are no target dates currently.

Recordkeeping requirements

OSHA is also trying to bring back Obama-era recordkeeping requirements, with a few other caveats. The current standard requires certain employers to electronically submit injury and illness information to OSHA. The agency is hoping to require certain establishments in high-danger industries to electronically submit additional info. 

According to the news release announcing the proposed rule, “It would advance the department’s mission to empower workers by increasing transparency in the workforce.

“The proposed rule would:

“Require establishments with 100 or more employees in certain high-hazard industries to electronically submit information from their OSHA forms 300, 301 and 300A to OSHA once a year.

“Update the classification system used to determine the list of industries covered by the electronic submission requirement.

“Remove the current requirement for establishments with 250 or more employees not in a designated industry to electronically submit information from their form 300A to OSHA annually.

“Require establishments to include their company name when making electronic submissions to OSHA.”

Establishments with 20 or more employees in certain high-hazard industries would continue to be required to electronically submit information from their OSHA Form 300A annual summary to OSHA annually.

Why all the missed deadlines?

The fact that OSHA has been missing so many deadlines or target dates for regulatory priorities is not uncommon. However, the agency hasn’t even issued an interpretation letter since last January. So many recent dates have likely failed to hit the mark because of COVID-19 setbacks and focus on the Emergency Temporary Standard (ETS). 

As a result of the decision made by the Supreme Court, OSHA withdrew the ETS. The agency was expected to release an NPRM on airborne infectious diseases in April 2022. That did not happen. OSHA is now looking at this May, leaving some to speculate whether the court decision pertaining to the ETS has OSHA reconsidering the regulation or revamping it to incorporate COVID-related elements. The Biden administration has indicated it would like a permanent standard in place addressing COVID-19 in the workplace. 

Another reason that OSHA may have had trouble hitting target dates on regulatory priorities is the agency’s focus on heat stress. Preventing heat illness in outdoor and indoor work settings has become a major priority for OSHA. 

According to DOL/OSHA RIN: 1218-AD39, “Heat stress killed 815 U.S. workers and seriously injured more than 70,000 workers from 1992 through 2017, according to the Bureau of Labor Statistics. However, this is likely a vast underestimate, given that injuries and illnesses are under-reported in the United States, especially in the sectors employing vulnerable and often undocumented workers. Further, heat is not always recognized as a cause of heat-induced injuries or deaths and can easily be misclassified, because many of the symptoms overlap with other more common diagnoses.”

The agency has already implemented an enhanced enforcement initiative pertaining to heat-related hazards, developed a national emphasis program on heat inspections, and created the Heat Injury and Illness Prevention Work Group within the National Advisory Committee on Occupational Safety and Health. However, any regulations on heat-related illnesses may be challenging to quantify and enforce. How heat impacts individuals is highly subjective and variable. Some have speculated that OSHA is having difficulty developing a standard. However, it is currently at the prerule stage.

Other pertinent regulatory actions that may affect the electrical industry that are currently at the proposed rule stage include communication tower safety, welding in construction confined spaces, walking working surfaces, PPE in construction, emergency response and updates to powered industrial truck design. Final HazCom updates could also be released any day now.

Predictions for FY 2023

Additional initiatives that OSHA will embark on this year include a fall prevention campaign with a national safety stand-down to prevent falls in construction in May, a heat illness prevention campaign to educate employers and workers in outdoor and indoor work settings, and a suicide prevention awareness campaign in September. Fall protection violations are the most commonly cited by OSHA and are the most commonly repeated offense. They account for nearly 25% of all citations and triple the amount of any other set of violations. 

Finally, expect to see continued aggressive enforcement throughout the year. More specifically, there are likely to be more repeat or willful violations, aggressive interpretations of standards and strongly worded press releases. Additionally, there will probably be less willingness to negotiate the severity of infractions. 

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