Member Article

This year promises to bring even more headlines than 2011 regarding workplace safety and the agency empowered to regulate it - OSHA. Given the increased scrutiny that regulators feel with election-year politics, the agency will have to pick its battles carefully when pursuing changes through new or updated regulations. Yet, frustration felt by OSHA when it comes to passing new laws may only fuel further action in an area it has aggressively pursued under President Obama’s Administration, namely, enforcement. Companies should pay attention to recent indicators that signal an agency that will keep the foot on the enforcement gas pedal while also strategically and selectively advancing regulatory initiatives.

Enforcement in 2012: Expect More of the Same

Based on recently issued data, employers have been put on notice of things to come in 2012. With the closure of the 2011 fiscal year, the following trends are notable regarding OSHA's enforcement initiatives:

• The average proposed penalty for “serious” violations more than doubled in 2011.
• Regarding “significant” cases (i.e., investigations producing fines totaling at least $100,000), 215 cases were filed in 2011, which represents a 31 percent increase as compared to 2010.
• The General Duty clause continued to be a top 10 “willful” citation, along with the following top 3 in that category: excavation/trenching; fall protection; and process safety management.

See Bloomberg BNA Occupational Safety & Health Reporter (January 19, 2012).

When it comes to enforcement, employers should expect more of the same in 2012. Indeed, Dr. David Michaels, the chief OSHA administrator, told Bloomberg BNA, through its Occupational Safety and Health Reporter (January 19, 2012), that the agency continues to monitor, among other things, the effect of its new penalty system implemented last year and its Severe Violator Enforcement Program. This is being done with an eye on the effectiveness of OSHA’s overall enforcement of its current regulations.

What to Expect from the Recently Released Regulatory Agenda

Regarding the potential for new regulations, Dr. Michaels informed Bloomberg BNA that OSHA plans to issue rules in 2012 updating regulations concerning hazard communication, confined space in construction, electric power generation, and a recordkeeping switch from the Standard Industrial Classification Code to the North American Industry Classification System. However, as the last few years have demonstrated, OSHA has encountered significant roadblocks in passing new regulations. Additionally, the Department of Labor published its Semi-Annual Regulatory Agenda for OSHA and other agencies on January 20, 2012, which includes proposed increases on outdated Permissible Exposure Limits (“PELs”) and plans for a small business review of the controversial “I2P2” or Injury and Illness Prevention Program rule. Here are some highlights from the Semi-Annual Regulatory Agenda:

• Review/Look-Back on OSHA Chemical Standards (pre-rule stage). The majority of OSHA’s PELs were set in 1971, and the science relied upon to set these limits dates back to the 1960s. OSHA’s request for information to move to the proposed rule stage, targeted for August 2012, would seek public input to identify additional options for addressing these outdated limits.
• Injury and Illness Prevention Program (pre-rule stage). OSHA remains committed to I2P2. The Regulatory Agenda lists a January 2012 start date for a small business review panel of the proposed rule. Such a review is required when OSHA determines that a proposed rule may have a significant economic impact on a substantial number of small businesses. On January 6, 2012, OSHA notified the Small Business Administration and the OMB’s Office of Information and Regulatory Affairs of its intent to convene a review of the rule in early March 2012. In making its case for the proposed rule, OSHA issued a white paper on January 11, 2012, claiming that the rule would reduce injuries by 15 to 35 percent. See Injury and Illness Prevention Programs White Paper (January 2012) at www.OSHA.gov. OSHA has also attempted to cast some positive light on otherwise critical analysis of the proposed rule based on California’s experience with injury, illness, and prevention programs and its I2P2 regulation, which dates back to 1991. Specifically, the California Commission for Health, Safety and Workers Compensation asked the RAND Corporation to assess the impact of its I2P2 program on reducing injuries. According to the RAND report, researchers “failed to find any clear impact of the I2P2 on the total fatality rate in California. [RAND] did find sizeable effects when the specific subsections of the I2P2 were cited, but this occurred in only five percent of inspections.” See An Evaluation of the California Injury and Illness Prevention Program here. Cognizant of the potentially devastating effects of this specific study on I2P2 effectiveness, Dr. Michaels has suggested that OSHA will learn from the RAND study in formulating its I2P2 rule. Dr. Michaels told Bloomberg BNA in an email, “This report provides data useful in identifying which aspects of the California program are more effective, such as training and accident investigation.” See Occupational Safety and Health Reporter, Bloomberg BNA (January 26, 2012).
• Infectious Diseases (pre-rule stage). A small business review of the agency’s potential proposed rule on reducing exposure to infectious diseases in certain workplaces is targeted for March 2012. According to the rule’s abstract, it could cover healthcare, correctional facilities, drug treatment programs, and other occupational settings where employees are at an increased risk of exposure to infections.
• Occupational Exposure to Crystalline Silica (proposed rule stage). OSHA projected a February 2012 publication of its proposed silica rule; however, significant delays have already occurred based on when the proposed rule was originally slated for publication. It continues to be evaluated through the OMB process. The proposal is expected to include a reduction in the PEL for silica dust to as low as 0.05 milligrams per cubic meter and to set more requirements covering issues such as regulated work areas and engineering controls.
• Improving the Tracking of Workplace Injuries and Illnesses and Occupational Injury and Illness Recording and Reporting Requirements - NAICS Update and Reporting Revisions (proposed rule stage). OSHA claims that it will issue a notice of proposed rulemaking in February 2012 on a standard to improve the tracking of workplace injuries and illnesses. Yet, no such proposal has been published. The proposed rule, which would shift OSHA’s injury tracking system from once per year to a continuous electronic real time approach, will supposedly yield more accurate data. Additionally, OSHA is analyzing public comments submitted on a separate proposal to migrate the employee reporting requirements under Section 1904 of the OSHA regulations to a new reporting requirement for work-related amputations, which must be reported within 24 hours, and to include a change to the trigger for recording inpatient hospitalizations from three workers to only one.
• Hazard Communication (final rule stage). Under this final rule, the hazard communication system would be aligned with the United Nation’s Globally Harmonized System, an internationally recognized system for labeling chemicals and classifying them. The OMB has completed its review of the rule, which means that it should soon be published in the Federal Register. It remains to be seen if the final rule will include an unclassified hazard category.

In reviewing past regulatory agendas, it is telling that certain previous hot items are now on the bottom of the list. For example, OSHA continues to work on potential rulemaking on combustible dust and diacetyl, which is used for flavoring popcorn, but these have been listed as long-term actions with no timetable for completing them. Similarly, the musculoskeletal disorder recordkeeping (MDS) proposed rule has also become an item with an undetermined timeline.

How much of the regulatory agenda will become a reality will also hinge on budget realities. OSHA’s proposed 2013 budget calls for $565.5 million and 2,308 workers, which is a small increase from the budget enacted in fiscal year 2012, essentially 3 extra employees and $608,470 in additional funding. Regardless of the ultimate budgetary approval for OSHA’s agenda, employers should expect continued and aggressive enforcement. Accordingly, companies should continue to review their ongoing assessments of workplace hazards and ensure that their employees are adequately trained on the numerous regulatory requirements enforced by OSHA.

If you have any questions please visit the Haynes and Boone Occupational Safety and Health Act (OSHA) and Workplace Disasters Practice page of our website or contact one of the lawyers listed below.