Workforce Bulletin

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 Epstein Becker & Green’s OSHA Practice Group

OSHA during the first term of the Obama Administration featured a heavy focus on enforcement, at the expense of compliance assistance, and despite a lot of talk, also at the expense of any meaningful new rulemaking activities.  There are signs now, however, that OSHA may be renewing a push for a more active rulemaking calendar during the Administration’s second term.

The first sign has been a series of speeches and public statements by OSHA’s Administrator, Dr. David Michaels, in which he has characterized the development of a proposed Injury and Illness Prevention Program (I2P2) rule as his and the Agency’s “highest priority.”  The I2P2 rule is being designed to compel employers to “find and fix” hazards, and would have significant implications for employers across all industries.  During a presentation at a safety conference in June, Michaels explained that “I2P2 would require employers to have an ongoing, investigative, preventative process in place instead of being reactive and addressing problems after an accident occurs.”  OSHA's leadership characterizing the I2P2 rule is a top priority is not new, but now that we are passed the 2012 Presidential Election, actual movement on the proposed rule is realistic.

Second, we are hearing that the Department of Labor’s Spring Regulatory Agenda is expected to return several OSHA 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.  For the moment, we are left only to guess about that active rulemaking calendar because the Department of Labor is once again significantly overdue, already by two months, publishing the Regulatory Agenda.  Congressional Republicans have criticized the Agency’s lack of transparency resulting from the delay, claiming the Administration is playing a game of regulatory hide-and-seek.

Finally, although OSHA has not made an official announcement yet, sources report that OSHA will soon promote Dorothy Dougherty, current Director of OSHA’s Directorate of Standards and Guidance, as its new Deputy Assistant Secretary, the most senior career position within OSHA.  Ms. Dougherty will replace former Deputy Assistant Secretary Richard Fairfax, who retired in early May of 2013.  This move is significant because, as her most recent title indicates, Ms. Dougherty’s long career at OSHA has included a heavy focus on the development of workplace standards, regulations, and guidance, and therefore may be another sign that OSHA plans to prioritize rulemaking over the balance of the Obama Administration’s time in office.

Ms. Dougherty began her career with OSHA in 1992 as Chief of the Compliance and Technical Guidance Division (another non-enforcement role) for the Office of the Federal Agency Programs.  Since that time, Ms. Dougherty has assumed several other leadership positions within the Agency, many of which focused on rulemaking and compliance assistance.  She has served nearly seven years in her current position as Director for the Directorate of Standards and Guidance.  Ms. Dougherty is well-liked within the Agency and has received high praise from current and former peers for her managerial skills and ability to work collaboratively with others, including appointed officials from both sides of the aisle.

By Eric J. Conn, Head of the OSHA Practice Group

Pursuant to the Regulatory Flexibility Act, the federal government and its agencies, such as OSHA, are required to give notice of significant rulemaking and other regulatory activity by publishing "semi-annual" regulatory agendas that outline the status of on-going and intended federal regulations and standards.  Someone needs to tell the Administration that "semi-annual" means twice yearly, not every other year.

Historically, the Office of Information and Regulatory Affairs (OIRA) issues a Spring regulatory agenda sometime during the summer, and a Fall regulatory agenda sometime in the winter.  Before last week (the final week of 2012), however, there had been no regulatory agenda published for 2012.  The only regulatory agenda published during 2012, was for Fall 2011.

Congressional Republicans had been hounding the Administration for a regulatory agenda since well before the Election, believing the long delay was because the President feared bad press and negative public reaction to the Administration's continued aggressive regulatory plans.

Senator Rob Portman (R-Ohio) sent a letter to the President in late August calling for an Spring Reg Agenda, and Congressman John Kline (R-MN), Chairman of the U.S. House Committee on Education and the Workforce, followed up with a November 1, 2012 press release stating:

"The Obama administration continues to play a game of regulatory hide-and-seek with the American people. Current law was designed to protect the public's right to know about rules and regulations being crafted behind the closed doors of the federal bureaucracy. However, on a range of issues including health care, retirement security, and workplace safety the president seems determined to keep his plans for new regulations secret."

The wait is finally over, as the Fall 2012 Regulatory Agenda was released last week (Friday, December 21, 2012) -- just in time for 2013.  Here are the OSHA-related highlights.  OSHA projects that during 2013, final agency action will be taken on 10 regulations, including the following:

1. A new Confined Spaces in Construction standard (by July 2013)

• For more than a decade, OSHA has been developing a counter-part to the general industry confined space standard (29 CFR 1910.146).
• The Final Rule for the construction industry is expected this summer.

2. An updated Electric Power Transmission and Distribution standard (by March 2013)

• Based on a high incident rate among electric line workers, forty years ago, OSHA developed a standard to address safety during the construction of electric power transmission and distribution lines.  Early in 2013, OSHA expects to implement a series of revisions to this standard intended to address non-construction work performed during maintenance on electric power installations, and to update PPE and Fall Protection requirements for work on power generation, transmission, and distribution installations.
• The final rule is expected early this year.

3. Gutting Cooperative Programs (by April 2013)

• OSHA has proposed to amend its cooperative Safety and Health Achievement Recognition Program (SHARP) to eliminate most of the exemptions from enforcement inspections historically available to facilities that have qualified for the program.
• This change could effectively eliminate most of the incentives for employers to participate in this recognition program, which OSHA has historically administered to incentivize and support small employers to develop, implement, and continuously improve effective safety and health programs.

4. An updated Walking Working Surfaces standard; i.e., Fall Protection (by August 2013)

• OSHA started the process to update its 1990 Fall Protection standard (to reflect advances in technology and strategies for guarding against slips, trips and falls) more than a decade ago.
• The final rule is expected this summer.

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 ...