On January 20th, the Department of Labor’s Occupational Safety and Health Administration (OSHA) finally released its fall 2011 regulatory agenda on its website. It reveals that OSHA’s top priorities include small business review of an injury and illness prevention program rule, a request for information on revision of OSHA’s permissible chemical exposure limits, and a projected release date for long-awaited silica exposure regulations. In addition to these ambitious efforts, the agency is considering more stringent record-keeping requirements for covered employers and new infectious disease control requirements of importance to the health care industry.
Small businesses will be significantly impacted by OSHA’s development of a rule which would require employers to implement an Injury and Illness Prevention Program. Flagged as OSHA’s highest-priority rulemaking under the Obama administration, the rule would require employers to locate and correct workplace hazards. Such a mandatory program is expected to build upon OSHA’s current Safety and Health Program Management Guidelines (54 FR 3904-3916), which are presently voluntary, and other industry recognition and best-practices initiatives.
The agenda lists a January 2012 start date for a small business review panel of the proposed program. The Small Business Regulatory Enforcement Fairness Act requires agencies to conduct a small business review of proposed rulemakings if a proposed rule may have a significant economic impact on small businesses. Around January 6th, OSHA notified the Small Business Administration and the White House that it intends to convene a panel within 60 days, meaning that review would start in early March. OSHA is also proceeding with an assessment of the scope of the rulemaking and a cost-benefit and risk analysis. This proposed rule-making would place substantial financial and operational burdens on small-businesses by mandating them to undertake costly review, planning, implementation, and evaluation of their operational procedures.
This rulemaking would also provide another basis for OSHA to impose penalties on small businesses, even where no specific OSHA standards are violated. These rules would newly penalize employers for failing to go beyond OSHA’s standards to identify hazards on the small business worksite and for failing to develop written programs to address those hazards. From OSHA’s perspective, if an injury occurs, OSHA can either cite the employer for failing to identify the hazardous condition and cover it in a plan, or, if the condition has been identified, for failing to develop an adequate program.
Also on the horizon is OSHA’s effort to re-evaluate and possibly update its permissible exposure limits (PELs) for numerous chemicals, most of which were set in 1971 based upon science dating back to the 1960s. OSHA has reached out to stakeholders and the public to identify priority hazardous chemicals that create the most occupational risks and has requested information from the National Institute for Occupational Safety and Health regarding a group of chemicals. OSHA’s latest agenda revealed that it is planning another information request in August 2012 to seek input from the public in order to identify options and alternatives for addressing occupational hazards posed by outdated exposure limits.
More imminently, OSHA aims for a February release of a long-awaited proposed rule on workplace silica exposure. Breathing dust containing crystalline silica, such as that generated in cement work, can cause a dangerous lung disease, silicosis, as well as other health conditions. In 2002, OSHA issued a draft proposed rule on silica exposure, which contemplated drastically lowering the PEL for silica and implementing a slew of requirements including prohibiting “dry-sweeping,” mandating exposure monitoring, establishing certain regulated areas, and requiring medical evaluations and certain approaches to implementing engineering controls and respiratory protections. All construction and other industry employers potentially affected by silica regulations should closely monitor this rulemaking.
OSHA also plans to conduct a small business review in March 2012 of its rulemaking regarding infectious disease controls. This rulemaking could affect health care, emergency response, correctional facilities, homeless shelters, drug treatment programs, and other occupational settings where employees are at increased risk for exposure to communicable diseases. Prior stakeholder meetings discussed whether and to what extent OSHA should require employers to develop written worker infection control plans and how OSHA can improve compliance with current infection control guidelines imposed by agencies like the Centers for Disease Control and Prevention (CDC), the National Institutes of Health (NIH), and others. Health care employers should monitor this rulemaking because it may subject them to OSHA requirements on infection control, in addition to the existing requirements of other agencies.
In February 2012, OSHA also hopes to propose recordkeeping rules to “improve” the reporting and tracking of workplace injuries and illnesses. These rules will require employers to report amputations and inpatient hospitalizations to OSHA much more quickly. The recordkeeping proposal is also likely to reflect OSHA’s efforts to move to a real-time, electronic approach for injury reporting.
OSHA’s released agenda has been characterized as ambitious by both labor and industry. OSHA was unable to issue its Fall 2011 regulatory agenda until 2012, which makes it appear unlikely that OSHA will be able to meet all of the substantive goals set forth in its agenda in 2012. However, the agenda indicates that the OSHA is hoping to take a “full speed ahead” approach on several comprehensive regulatory initiatives that will have substantial effects on businesses, especially small businesses.