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The Challenges Ahead: OSHA Outlook

2015 Occupational Safety And Health Regulatory And Political Outlook

Published: February 2015
By Tom O'Connor

The Occupational Safety and Health Administration (OSHA) is gearing up for some aggressive policy goals in the coming year. Its regulatory agenda furthers progress on a series of existing initiatives and some new areas of focus. Unfortunately, OSHA's aggressiveness, the financial climate in Washington, D.C., and the newly elected majority-Republican Congress may prove to be too significant a challenge for the agency to reach its goals in 2015.

One of OSHA's top priorities for several years has been the issuance of an Injury and Illness Prevention Program (I2P2) regulation. However, OSHA announced recently that it moved I2P2 into a "long-term action" category. Experts believe that the change in philosophy on I2P2 reflects shifting priorities and limited resources.

According to Tressi Cordaro, a shareholder with workplace law firm Jackson Lewis in Washington, D.C., "They're trying to get a lot in, and, to me, it comes down to a lack of staffing to move forward on the rest of the agenda. They've prioritized and moved I2P2 to the back-burner for now."

At this point, the future of this initiative is uncertain at best.

Other items in OSHA's current regulatory agenda would further progress on proposed rules pertaining to beryllium exposure, cranes and derricks in construction, standards for eye and face protection, and crystalline silica exposure.

Proposed changes to the crystalline silica exposure standards 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 a 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.

The National Electrical Contractors Association (NECA) and a number of other industry associations have voiced concerns about the practicality of implementing certain measures of the silica regulation. For example, spraying water to reduce dust and silica levels is not practical when conducting electrical work.

Michael Johnston, NECA executive director of standards and safety said, "Some of the suggested control measures for silica, like spraying water to reduce dust, simply wouldn't work on inside construction projects. As electrical contractors, we make every effort to keep water away from electrical installations in progress. That's one of our industry's primary safety regulations."

Whether or not these differences are resolved between the construction industry and OSHA remains to be seen. Either way, there are very likely significant changes pertaining to silica and the industry on the horizon. In fact, David Michaels, assistant secretary of labor for occupational safety and health, told attendees at Safety 2014's June 10 plenary session that work on the agency's proposed crystalline silica standard is "actually moving quite well" and that he expects the standard to be finalized in 2016.

This past year, OSHA also issued a final rule on injury and illness recording and reporting that went into effect in January 2015. The revised rule changed the requirements for reporting work-related fatalities, injuries and illness information to OSHA. The final rule amends the existing standard to require employers to report all work-related inpatient hospitalizations, as well as amputations and losses of an eye, to OSHA within 24 hours.

There was also a final rule issued on OSHA's Hazard Communication Standard for updating labels and safety data sheets. Compliance with those changes is supposed to take effect June 1, 2015. However, several trade associations are working to push the start date back to 2017. It is uncertain whether that will happen, but OSHA has indicated that it will exercise its enforcement discretion in cases where a regulated entity has performed due diligence and made a good-faith effort to obtain the necessary information to comply with the 2015 deadline and is unable to do so.

Another final rule issued this past year was the Electric Power Transmission and Distribution, Electrical Protective Equipment Standard. The new rule includes revised requirements for fall protection, minimum approach distances, arc flash protection and for host employers and contract employers to exchange safety-related information. The final rule also includes requirements for electrical protective equipment.

"The long-overdue final rule updating a 40-year-old standard will save nearly 20 lives and prevent 118 serious injuries annually," Michaels said. "Electric utilities, electrical contractors and labor organizations have long championed these much needed measures to better protect the men and women who work on or near electrical power lines."

The new requirements were in full effect as of Dec. 31, 2014.

Other final rules expected to be released in the very near future include updates to confined spaces in construction regulations, walking and working surfaces and personal fall-protection systems standards. These changes will incorporate current technologies for preventing slip, trip and fall hazards and establish requirements for personal fall-protection systems. Additionally, a final rule is expected on tracking workplace injuries and illnesses. It will require employers subject to requirements for injury and illness recordkeeping to electronically submit certain information from the OSHA 300 Log, OSHA 301 Incident Report and OSHA 300A summary. Now, employers are only required to submit this information upon request, typically as part of an inspection or survey. OSHA anticipates the final rule by March 2015.

"With the changes 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.

In addition to the regulations already in the proposed or final rulemaking stage, OSHA has a number of other regulatory initiatives it is preparing to begin work on as well. Those actions are in the prerule stage and include modifications to standards addressing combustible dust, blood-borne pathogens, infectious diseases, preventing backover injuries and fatalities, chemical management and permissible exposure limits, process safety management and prevention of major chemical accidents, communication towers work and hazards, and emergency response and preparedness.

Last year, OSHA conducted a review of the combustible-dust hazard standard. The agency 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, originally adopted in 1971, are often considered outdated.

Additionally, blood-borne pathogens, infectious diseases and emergency response and preparedness are likely to receive more attention and consideration. This comes as a result of recent headlines and attention paid to Ebola and highly transmittable diseases and illnesses. OSHA also plans to conduct more inspections in 2015, with an increased focus on health-related violations, in part, for this very reason.

According to OSHA, communication tower construction and maintenance activities are not adequately covered by current OSHA fall-protection and personnel-hoisting standards. Additional safety measures have become imperative, especially considering there were 13 communication tower fatalities in 2013, alone. Most deaths were attributed to falls and improper or inconsistent use of safety equipment. In other cases, towers collapsed during modification work, such as when replacing cross braces.

Another area of focus this year will be an increased attention on temporary workers. The number of temporary workers on job sites has drastically increased in recent years. These individuals are required to be trained on safety compliance just like full-time employees. Recently, a temporary worker died on his first day of work using a machine that had not been locked out as required. OSHA fined the employer $192,000.

"Our message is: do the right thing now," Michaels said. "Obviously, we'll come in and fine you if you don't."

OSHA is expected to more aggressively police the use of temporary employees during inspections.

To help achieve the agency's priorities and goals, President Barack Obama's overall fiscal year 2015 budget request for OSHA was $565 million, which is an increase of $12.7 million from the enacted FY 2014 budget levels. In the administration's proposed budget, there was an additional $3 million being requested for federal enforcement of the health and safety standards of the Occupational Safety and Health Act of 1970 as well as an additional $4 million for whistleblower protection programs. The budget also requested more funding for state programs to ensure they are as effective as OSHA's federal enforcement programs.

However, the budget was not approved by Congress. Instead, Congress passed an omnibus spending bill that included a continuing resolution, carrying over the same budget numbers from the OSHA FY 2014 enacted budget. This may be concerning given the on-the-job-fatality figures below from the last few years.

U.S. Secretary of Labor Thomas E. Perez said, "Workplace injuries and fatalities are absolutely preventable, and these new requirements will help OSHA focus its resources and hold employers accountable for preventing them."

Whether or not OSHA achieves all its policy goals for the year remains to be seen. However, whatever progress the agency makes will help to reduce the number injuries, illnesses and fatalities in the workplace. For more information on any of the topics mentioned in this article or if you would like to review OSHA's regulatory agenda or budget request, visit www.osha.gov.