By the national OSHA Practice Group at Epstein Becker & Green
As we closed the book on 2013 — a truly remarkable year of OSHA enforcement and regulatory activity — we look to the future, and think about what to expect from OSHA in 2014. Over the next couple of weeks, we will roll out what we believe are the 5 most significant OSHA developments to monitor in 2014.
If you are interested in how accurate our past predictions have been, take a look at these articles from December 2011 forecasting five OSHA developments for 2012 and from December 2012 predicting three developments from OSHA in 2013.
Without further ado, here are the 5 OSHA-related developments you should anticipate in 2014, so says the collective wisdom of the national OSHA Practice Group at Epstein Becker & Green:
1. A Busy OSHA Rulemaking Docket
Although OSHA enforcement has reached levels never seen before by every measure, rulemaking activity under the current Administration has been slow. During President Obama’s first term, OSHA identified numerous rulemaking initiatives in its periodic Regulatory Agenda updates, including rules for combustible dust, Crystalline Silica, Beryllium, and an Injury and Illness Prevention Program (I2P2) rule. All of these proposed rules, however, missed important rulemaking deadlines or were completely set-aside. We expect that to change in 2014 and for the balance of this Administration, as the OSHA leadership team will strive to leave their legacy.
Just as we saw OSHA deemphasize rulemaking in the year leading up to the 2012 Presidential election, we are already seeing signs of a typical post-election, second term, aggressive rulemaking calendar from OSHA. The first sign of the new rulemaking push could be seen in speeches by David Michaels, the Assistant Secretary of Labor for OSHA, who characterized the proposed I2P2 rule as his and OSHA’s “highest priority.” Second, OSHA recently issued its Fall 2013 Regulatory Agenda, which, as we expected, returned several rulemaking initiatives, including the I2P2 rule, from the backburner, where they were deposited prior to the 2012 Presidential Election, back to the active rulemaking calendar. Finally, OSHA has also introduced new rules, such as a proposed rule to require employers to proactively report to OSHA injuries and illnesses, not just record them on the 300 Log. Check out our article about a burdensome new Injury & Illness Reporting Rule advanced by OSHA. Other important rules in the proposed or pre-rule stage to monitor in the coming year include:
- Occupational Exposure to Crystalline Silica (comments and hearings coming due early in 2014)
- Request for Information about the Process Safety Management Standard (including a reevaluation of the exemption of above ground atmospheric storage tanks)
- Walking Working Surfaces and Personal Fall Protection Systems (now in the Final Rule stage)
- Review/Lookback of OSHA Chemical Standards (an effort to make wholesale changes to existing chemical exposure limits)
2. OSHA Will Focus on Temporary Worker Safety
The treatment of temporary workers is expected to become more significant as the Affordable Care Act (“ACA”) is implemented, particularly when the “Employer Mandate” kicks in. The ACA will require employers with 50 or more workers to provide affordable coverage to employees who work at least 30 hours per week. This will result in employers using more part-time workers and hiring more contractors; i.e., workers who will not be counted towards the 50-worker minimum for ACA coverage. Both qualities are commonly associated with “temporary workers.”
With an expected increase in the use of temporary workers, along with recent reports of temporary workers suffering fatal workplace injuries on their first days on a new job, OSHA will make temporary worker safety a top priority in 2014, and has already launched a Temporary Worker Initiative. OSHA’s stated goals for the Temporary Worker Initiative are to:
- Protect temporary workers from workplace hazards;
- Ensure staffing agencies and host employers understand their safety & health obligations; and
- Learn information regarding hazards in workplaces that utilize temporary workers.
To achieve these goals, OSHA is developing outreach materials (such as fact sheets and webpages), and will use a combination of enforcement and training, but based on OSHA’s track record, we expect this will involve mostly enforcement. OSHA’s director of enforcement programs already issued a memorandum to its Regional Administrators instructing them to increase efforts to investigate employers’ use and protection of temporary workers. This side of the Temporary Work Initiative is already showing results. In the last quarter of FY 2013 alone, OSHA issued citations at 262 worksites where temporary workers were allegedly exposed to safety and health violations. Additionally, OSHA has conducted more than twice as many inspections of staffing agencies this year as it did last year. This trend will undoubtedly continue in 2014, so it is critical for host employers and staffing agencies to understand the dividing line of responsibility for addressing hazards to which temporary workers are exposed.
3. Hazard Communication Comes Into Focus
December 1, 2013 marked the first key implementation deadline of OSHA’s Hazard Communication standard, which was recently amended to align with the United Nations’ Globally Harmonized System of Classification and Labeling of Chemicals. The HazCom Standard now requires employers to use a standardized system of labeling chemical containers and a standardized format for Safety Data Sheets (formerly MSDSs). The December 1st deadline was the point by which employers were required to have trained all employees on the new labeling formats and safety data sheet format. We expect OSHA to scrutinize employers’ compliance with that training requirement in the coming year, to make sure the roll out of the rest of the new Standard’s requirements proceeds as planned.
The next major deadline under the HazCom Standard is not until June 1, 2015, by when employers must implement the new labels and SDSs. That work should start in earnest in 2014 or employers will find themselves behind the eight ball when these requirements kick-in. During the transition period, chemical importers, distributers, manufacturers and employers may comply with the old HazCom standard, the new HazCom standard, or a combination of both. Here is a link to an article with additional information about the upcoming deadlines and requirements of OSHA’s updated HazCom/GHS Rule.
4. New Judges May Change the Outcomes of OSHA Disputes
The Occupational Safety and Health Review Commission (OSHRC) is a body of independent Administrative Law Judges who adjudicate contests of OSHA citations at the hearing level, and a three-judge panel of Commissioners who hear appeals of those cases. Historically, the OSHRC Commissioners have included two Commissioners from the President’s party and the third from the opposite political party. For years now, the Commission has been comprised only of two Commissioners, both of the President’s party, and the potentially more pro-employer seat has remained empty, until now. The White House just announced a nominee for the empty seat on the Review Commission — Heather L. MacDougall. For the past decade, Ms. MacDougall has been an attorney representing management in OSHA disputes. Prior to 2003, she served as Chief Legal Counsel and Special Advisor to the Chairman of the OSH Review Commission. Although Ms. MacDougall will likely be in the minority in many decisions by the Review Commission, having a management-side voice in the discussion at the Review Commission level can only help the employer community.
On the flip side, a development with more potential impact on OSHA disputes is Sen. Harry Reid’s decision to exercise “the Nuclear Option” to change Senate rules on judicial appointments. Specifically, the Senate approved a rules change in November to eliminate the filibuster on presidential nominees (except for Supreme Court nominees). This means that President Obama’s judicial and executive branch nominees no longer need 60 votes to reach the Senate floor for an up-or-down vote. This matters to OSHA disputes because OSHA cases can be appealed from the three Commissioner Panel at OSHRC out to the U.S. Court of Appeals for either the Circuit with jurisdiction over the cited workplace or the District of Columbia Circuit. In other words, every OSHA case can be appealed to the DC Circuit, which has long been a conservative, pro-employer body. The Nuclear Option was executed ultimately because three of President Obama’s appointees to the DC Circuit were being blocked. With the rules changed in the Senate, President Obama may now be able to stack the DC Circuit, and change its complexion from the good forum it is now for employers in OSHA cases.
5. Heat Illness Will Get More Attention by Cal/OSHA and Private Litigants
Over the past few years Cal/OSHA has aggressively enforced California’s Heat Illness Prevention statute, Title 8 Section 3395(d), which requires employers to provide to employees training, access to shade, and adequate drinking water for work outdoors in high heat conditions. Under Cal/OSHA’s heat illness statute, employers also are required to maintain one or more shaded areas, with either open-air ventilation, forced ventilation, or forced cooling, and employers are required to allow and encourage employees to access these shaded or cooled areas for cool down periods of no less than five minutes or as employees feel the need to do so.
On October 10, 2013, the California Legislature joined Cal/OSHA’s fight, and signed a bill amending California Labor Code Section 226.7 to include penalties for failure to provide Cool-Down Recovery Periods (“CDRPs”). This requirement kicks in on January 1, 2014, after which California employers will be required to pay a premium for not providing CDRPs to employees. An important distinction between the new Statute and Cal/OSHA’s heat illness prevention rule is that Cal/OSHA’s rule applies only to employees working in high heat conditions, whereas the CDRP legislation does not identify specific working conditions that trigger it. Employees working in air-conditioned offices may also be entitled to CDRPs. The amendment also now allows private litigants to recover for violations, so 2014 is sure to see substantial new litigation in California including new heat illness-related wage and hour class action suits. This will also trigger more employee complaints to Cal/OSHA about heat illness to support their civil suits, and therefore, even more Cal/OSHA Heat Illness Prevention citations. Check out our article on the OSHA Law Update blog for more information about California’s new Cool-Down Recovery Period legislation.