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.
By Eric J. Conn, Head of the OSHA Practice Group at Epstein Becker Green
An industry contact recently asked me what five issues I expected OSHA would be focusing its enforcement efforts on for the balance of this year. Here was my response:
1. Emergency Exits & Exit Routes – A couple of months ago, OSHA issued an enforcement memorandum directing inspectors to scrutinize whether employers were providing and maintaining adequate means of emergency exit; i.e., unlocked, unobstructed, and clearly marked exit doors and exit routes in compliance with 29 C.F.R. 1910.36. We ...
Last week, EHS Today Magazine ran our article in which we delve into more detail about OSHA's amended Hazard Communication Rule (“HazCom”), and the integration of the United Nations’ Globally Harmonized System of Classification and Labeling of Chemicals (“GHS”). Check out the full article here, in which we detailed 10 important things employers need to know about the final HazCom Rule. Here's the short list:
- New Hazard Classification Criteria
- New Method for Evaluating Mixtures
- Amended Label Requirements
- Proscrictive Format for Safety Data Sheet
- Inclusion of ...
By Eric J. Conn and Casey M. Cosentino
Following a March 20, 2012 Press Release, on March 26, 2012, OSHA issued its much anticipated final Hazard Communication Rule ("HazCom"), which integrates the United Nations’ Globally Harmonized System of Classification and Labeling of Chemicals (“GHS”) into OSHA’s old Hazard Communication Standard (“HazCom” or "HCS"). The new HazCom Standard requires employers to classify chemicals according to their health and physical hazards, and to adopt new, consistent formats for labels and Safety Data Sheets (“SDS’s” ...
By Paul H. Burmeister and Eric J. Conn
At the end of January 2012, OSHA finally released its Fall 2011 regulatory agenda, which is intended to be an overview of what OSHA plans to accomplish in the next few months. The agenda includes updates about the status of several major OSHA rulemaking efforts. Below is a brief summary of the Reg Agenda.
This Reg Agenda was far less ambitious than each of the previous agendas set forth by the Obama Administration’s OSHA, but it does reveal the agency’s top priorities that will continue to be pressed even during an election year. The highlights ...
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 ...
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