During the Occupational Safety and Health Administration (OSHA) semi-annual meeting, the agency unveiled its regulatory agenda. This year, OSHA is taking up fewer initiatives than it has in recent history. Additionally, OSHA has postponed compliance and effective dates of some recently enacted regulations. Work on some standards has been abandoned altogether. The agency hinted at a few regulatory modifications that may come down the pike in the near future. However, one year into President Trump’s term, there is still uncertainty on direction, compliance and enforcement.
“During the George W. Bush administration, it was two or three years before you saw the ship really turn in a very significant way from the Clinton administration,” said Eric J. Conn, founding partner of Washington, D.C.-based Conn Maciel Carey LLP and chair of the firm’s OSHA Workplace Safety Practice Group. “I don’t think you’re going to see overnight a dramatic change in the way OSHA operates, but by the end of four years, you will see a markedly different approach by the agency.”
Some clarity may come in the form of Scott A. Mugno, Trump’s nominee for assistant secretary of labor for occupational safety and health, upon his Senate confirmation.
Despite not having an Assistant Secretary of Labor for Occupational Safety and Health in place for all of 2017, OSHA made small strides forward. The agency’s final rule on walking working surfaces—specifically addressing slip, trip and fall hazards allowing employers to select fall-protection equipment that suits them best—started going into effect in 2017. The rest of the regulation is slated to take effect by the end of this year.
In an OSHA news release announcing the final rule, David Michaels, former assistant secretary of labor for occupational safety and health, said, “Advances in technology and greater flexibility will reduce worker deaths and injuries from falls.”
The agency estimates the changes will save nearly 30 lives and prevent more than 5,000 injuries every year.
OSHA also issued a final rule to improve tracking of workplace injuries and illnesses at the end of 2016. However, portions of the rule are only now taking effect.
According to OSHA guidance, “The requirement became effective on Jan. 1, 2017. The new reporting requirements will be phased in over two years. In 2017, all covered establishments must submit information from their completed 2016 Form 300A by Dec. 15, 2017. In 2018, covered establishments with 250 or more employees must submit information from all completed 2017 forms (300A, 300 and 301) by July 1, 2018, and covered establishments with 20–249 employees must submit information from their completed 2017 Form 300A by July 1, 2018. Beginning in 2019 and every year thereafter, covered establishments must submit the information by March 2.”
A final rule was issued to modify permissible exposure limits (PEL) for beryllium. Previous requirements were outdated and ill-equipped to protect worker health. However, amid heavy resistance from industry, the standard was reopened in July for public comment. Even though work thus far reflects many years of input from industry and labor stakeholders, small business representatives, subject matter experts and other partnering agencies, an agreeable compromise has yet to be made.
New key provisions currently include reducing the PEL for beryllium to 0.2 micrograms per cubic meter of air, averaged over 8 hours, establishing a new short-term exposure limit for beryllium of 2.0 micrograms per cubic meter of air over a 15-minute sampling period. Employers now must use engineering and work-practice controls (such as ventilation or enclosure) to limit worker exposure to beryllium; provide respirators when controls cannot adequately limit exposure; limit worker access to high-exposure areas; develop a written exposure control plan; and train workers on beryllium hazards. The new provisions also require employers to make available medical exams to monitor exposed workers and provide medical removal protection benefits to workers identified with a beryllium-related disease.
OSHA estimates the rule will save 94 lives and prevent 46 new cases of chronic beryllium disease each year. The rule is expected to save employers more than $560 million in medical expenses and other forms of savings each year. A new final rule should be released sometime in 2018.
OSHA issued a proposed rule that would modify respiratory-protection requirements. It is intended to change fit-testing protocols for respirators and applies to employers in the general, shipyard and construction industries. A final version is likely to be issued this year.
Despite industry and stakeholder contentions over the legality of OSHA’s newly updated silica regulation, enforcement is now in effect. However, the agency delayed the initial compliance dates from April to September. OSHA issued guidance for complying with new provisions in September as well. Some predicted this would not happen at all.
President Trump signed an executive order in January 2017 that required federal agencies to eliminate two regulations for every new proposed rule. As a result, OSHA abandoned work it had been doing since 2009 on a combustible dust regulation. Although there is no OSHA standard in place for combustible dust, the National Fire Protection Association has a voluntary combustible dust standard that employers can use. OSHA also eliminated bloodborne pathogens and noise in construction from its regulatory agenda.
“I suspect, and I have heard from a fair number of safety directors, safety managers, corporate safety directors, that they are concerned that safety might become less of a priority to senior management if it is less of a priority to the regulator,” Conn said.
When Trump issued his FY 2018 Department of Labor Budget Request, he asked for a slightly lower funding level for OSHA from actual FY 2017 and FY 2016 levels. The only major proposed cut is the elimination of the Susan Harwood Grant Program. Doing so would save $10.5 million. However, it remains to be seen if Congress can pass a budget bill. The last few years, they have only managed to pass continuing resolutions, which simply extend the previous year’s funding levels.
Trump also signed a Congressional Review Act resolution on April 4, 2017 to eliminate the “Volks” rule, published at the end of 2016.
“This means that OSHA is prohibited from issuing employers citations for failing to record injuries or illnesses beyond the six-month statute of limitations set out in the OSH Act, which is precisely what the U.S. Court of Appeals for the District of Columbia held when it decided the Volks decision,” an agency news release states.
While OSHA cannot issue citations beyond six months, employers are still required to maintain injury and illness records for five years. During that five-year period, employers should continue to update their OSHA 300 Logs when new or additional information is discovered that may affect a determination of recordability.
In May 2017, five members of Congress introduced the Accurate Workplace Injury and Illness Records Restoration Act, which would reinstitute the Volks rule.
Some actions are still up for consideration. These include several at the prerule stage, meaning the agency is gathering information to create a new standard or make changes to an existing one. Of those, there are a few that may impact electricians, linemen and wiremen. They include powered industrial trucks, communication tower safety and lockout/tagout.
The agency is gathering information and working with the Federal Communications Commission on industry best practices, safety practices, certifications, training and current industry consensus standards on communication towers. This is, likely, in preparation to begin developing a proposed standard on communication tower safety.
Several items are included in the OSHA regulatory agenda as long-term actions as well. Included in these are updates to the HazCom standard, infectious diseases, reporting musculoskeletal disorders and injuries, amending the cranes and derrick standard, emergency response and preparedness, tree care, and workplace violence.
This year will be an interesting and pivotal year for the agency. Hopefully, whatever progress is made will reduce the number injuries, illnesses and fatalities in the workplace.