By Eric J. Conn and Amanda R. Strainis-Walker
As the clock winds down on 2011, a truly remarkable year of OSHA enforcement, it is time to think about 2012. Notwithstanding the fact that 2012 is an election year, and much of OSHA’s rulemaking activities will be shelved until the day after the election, 2012 is likely to be another remarkable year in the OSHA universe, from significant enforcement initiatives to the completion of some major rules.
Below is a list of the 5 most important developments we expect to see out of the agency in the upcoming year:
- Nationwide Chemical Facilities Process Safety Management National Emphasis Program (Chem NEP): Just last week, OSHA issued a Directive launching a new, nationwide Chemical Facilities Process Safety Management National Emphasis Program. Inspections under the Chem NEP will begin in earnest in 2012 across all OSHA Regions and in all State Plan States. It follows on the heels of OSHA’s Refinery PSM NEP and the pilot Chemical Facilities PSM NEP, which OSHA believes were successful (i.e., they issued quite a few very significant enforcement actions).
- Follow-up Inspections & Repeat Violations: OSHA characterizes citations as Other Than Serious (OTS), Serious, Willful, or Repeat. The maximum penalty for OTS and Serious citations is $7,000 per violation, but for Willful and Repeat violations, OSHA can issue penalties up to $70,000 per violation. By actively pursuing more Repeat violations, OSHA is issuing much higher penalties. Until recently, Repeat violations were rarely issued because OSHA: (1) historically treated workplaces as individual, independent establishments; (2) limited to three years its review of employers’ OSHA records for past violations to form the basis for a Repeat; and (3) was less likely to revisit workplace within a few years. Each of these factors has changed, as OSHA now: (1) treats related workplaces within a corporate family as one workplace for purposes of Repeat violations; (2) looks back five years for past violations to form the basis for Repeats; and (3) selects inspection targets with past violations with the goal of finding and citing more Repeat violations. As a result, in the past two years, OSHA has increased the number of Willful and Repeat violations it has issued by more than 215%. This heavy use of follow-up inspections and Repeat violations is how OSHA has tripled the number of significant enforcement actions (cases over $100,000) over the past two years.
- Resurrection of Ergonomics Enforcement: Since OSHA’s Ergonomics Standard was killed at the beginning of the Bush Administration, the agency has struggled to pursue a coherent enforcement strategy regarding ergonomic hazards. OSHA now has that strategy, and will be rolling it out in earnest in 2012. Specifically, the agency will enforce ergonomic hazards through the General Duty Clause by cross-referencing “non-mandatory” guidance documents OSHA has issued or similar guidance documents authored by industry associations. The first area where this strategy will be tested is in the nursing care industry, under the Nursing Home National Emphasis Program just launched by OSHA. The agency announced that the primary focus of this NEP is ergonomic hazards, and nursing homes is just the beginning.
- Change in Reporting Requirements: A change to OSHA’s Recordkeeping regulations regarding what injuries and incidents need to be reported directly to OSHA is quickly moving its way through the agency to the White House. Presently, employers are required to contact OSHA within 8 hours of any incident that results in a fatality or the in-patient hospitalization of three or more employees. The proposed rule, which we anticipate will become effective during 2012, will require employers to report any incident that results in the in-patient hospitalization of even a single employee as well as any incident that results in any form of amputation. OSHA is required to investigate reportable incidents, and with this rule change, OSHA will be in more facilities conducting more inspections than ever before.
- Globally Harmonized System of Classification and Labeling of Chemicals (GHS): Global Harmonization is a global approach (adopted in approx. 50 countries) to hazardous chemical classification and hazard communication. In January 2011, OSHA announced its plan to publish the final rule to align OSHA’s long-standing Hazard Communication Standard with the principles of GHS. The rule is largely through the rulemaking process, and is waiting OMB approval, which we anticipate early in 2012. Under GHS, MSDSs will get a complete facelift from the format employers most often see today. The biggest challenges for U.S. employers under GHS will be managing their catalogues of Material Safety Data Sheets, safety labels, and training employees in the new systems.