On December 7, 2009, the Department of Labor’s Occupational Safety and Health Administration (”OSHA”) released its  semi-annual regulatory agenda identifying the regulations it has selected to review or develop over the next twelve months. Included in the twenty-seven item agenda are the following significant regulatory items in the final rule, proposed rule, pre-rule, and long-term stages. While OSHA has published a schedule for these items, the published dates are tentative and subject to change. The OSHA provisions are included in the DOL

Regulations in Final Rule Stage

In September 2010, OSHA expects to take final action on its Electric Power Transmission and Distribution and Electrical Protective Equipment proposed rule. OSHA published the proposed rule on June 15, 2005 and held a public hearing from March 6-14, 2006. OSHA also reopened the record in October 2008 and in September 2009, which included a public hearing on October 28, 2009, seeking comments on revised minimum approach distance tables.

In July 2010, OSHA plans to issue a final rule regarding the cranes and derricks in construction proposed rulemaking. OSHA published the proposed rule on October 9, 2008 and held a public hearing from March 17-20, 2009.

Regulations in Proposed Rule Stage

In January 2010, OSHA intends to issue a notice of proposed rulemaking to include a definition of work-related musculoskeletal disorders to its recordkeeping regulations in 29 C.F.R. Part 1904. This notice of proposed rulemaking would also add a separate column on the OSHA 300 Log so employers could track these disorders on the log.

In February 2010, OSHA plans to hold a public hearing on its proposed rule that would modify the hazard communication standard to make it consistent with the Globally Harmonized System of Classification and Labeling of Chemicals. OSHA issued a notice of proposed rulemaking on September 30, 2009.

By March 2010, OSHA expects to analyze comments it received in connection with its proposed rule to extend confined-spaces protection to construction workers. OSHA published the proposed rule on November 28, 2007 and held a public hearing on July 22, 2008.

Also in March 2010, OSHA intends to issue a notice of proposed rulemaking on walking working surfaces and personal fall protection systems. OSHA initiated a proposed rulemaking in 1990 and reopened the record for that rulemaking in 2003.  Based on the comments received in 2003, OSHA has determined that the 1990 proposed rule is out-of-date and does not account for current technology and industry practice.

Regulations in Pre-Rule Stage

By January 2010, OSHA plans to complete a peer review of the occupational exposure standard for crystalline silica as part of the process for developing a proposed standard for crystalline silica. This review will include an analysis of the possible health effects resulting from such exposure and the economic impact that recommended protective measures will have on employers. OSHA also expects to publish a notice of proposed rulemaking for this standard by July 2010.

On January 19, 2010, OSHA expects to end the comment period for the advanced notice of proposed rulemaking it issued on October 21, 2009 for a general industry combustible dust standard.

In March 2010, OSHA plans to implement a peer review of occupational exposure to beryllium. In January 2008, OSHA completed a Small Business Regulatory Business Fairness Act (”SBREFA”) panel that published a report, including a draft proposed rule, on occupational exposure to beryllium.

By April 2010, OSHA expects to complete Section 610 (of the Regulatory Flexibility Act) reviews of its current methylene chloride standard, 29 C.F.R. § 1910.1052, and its current bloodborne pathogens standard, 29 C.F.R. § 1910.1030. These reviews will consider the need for either standard; whether either standard overlaps, duplicates, or conflicts with other regulations; and the degree to which technology, economic conditions, or others factors have changed since either rule was last evaluated.

In June 2010, OSHA plans to convene a stakeholder’s meeting to discuss a possible comprehensive emergency response standard. While OSHA recognizes that emergency responder health and safety is regulated under numerous standards, including the fire brigade, hazardous waste operations and emergency response, respiratory protection, permit-required confined space, and bloodborne pathogens standards, OSHA has concluded that none of these standards was designed to address the full range of hazards facing emergency responders.

In October 2010, OSHA expects to initiate a peer review of occupational exposure to diacetyl, a major component in artificial butter. In July 2009, OSHA completed a SBREFA panel that published a report, including a draft proposed rule, on occupational exposure to diacetyl.

Long-Term Actions

OSHA continues to collect information on noise-induced hearing loss among workers in the construction industry and may promulgate a rule that mandates employers to establish a hearing conservation program for construction workers.

On December 7, 2009, the Equal Employment Opportunity Commission (”EEOC”) released its Semiannual Regulatory Agenda and its Regulatory Plan. The agenda lists seven items that are scheduled for review or development during the next 12 months, including three proposed rules and four final rules.According to EEOC, of these seven items, the two most significant regulatory actions are included in the Regulatory Plan: (1) developing reasonable factors other than age under the Age Discrimination in Employment Act (”ADEA”) and (2) finalizing regulations to implement the equal employment provisions of the Americans With Disabilities Act (”ADA”) Amendments Act.

EEOC states that it intends to issue a Notice of Proposed Rulemaking (”NPRM”) to address the scope of the “reasonable factors other than age” defense under the ADEA. These proposed regulations would complement the Commission’s proposed regulations concerning the burden of proof regarding disparate impact under the ADEA, which were published on March 31, 2008.

As to the ADA Amendments Act, EEOC states that it intends to finalize its regulations and accompanying interpretative guidance implementing those Amendments. These revised regulations are necessary to bring the Commission’s regulations into compliance with the ADA Amendments Act of 2008, which explicitly invalidated certain provisions of the existing ADA regulations. According to EEOC, the primary effect of these changes will be to make it easier for an individual seeking protection under the ADA to establish that he or she has a disability within the meaning of the ADA.

Other items on EEOC’s agenda include:

• Issuing a final rule implementing title II of the Genetic Information Nondiscrimination Act (”GINA”), which prohibits the use of genetic information in making employment decisions and limits employer access to genetic information;
• Amending procedural and administrative regulations to include the GINA;
• Issuing a final rule on the disparate impact burden of proof under the ADEA;
• Revising the existing Federal sector EEO complaint process to make it more efficient and effective; and
• Making employee self-identification the preferred method for collecting race and ethnic data on employees for reporting purposes.

On December 3, 2009, the Senate confirmed President Barack Obama’s nomination of Dr. David Michaels as the Assistant Secretary of Labor for the Occupational Safety and Health Administration. The Senate Health, Education, Labor, and Pensions Committee approved his nomination on November 18, 2009.

The Assistant Secretary of Labor is responsible for developing and enforcing OSHA regulations regarding workplace safety and health, as well as issuing interpretive guidance and opinion letters to assist employers in their compliance efforts with these regulations.

Michaels currently serves as a Research Professor at the Department of Environment and Occupational Health at the George Washington University School of Public Health and Health Services. Prior to this role, Michaels served as Assistant Secretary of Energy for Environment, Safety and Health, where he was responsible for protecting the safety and health of workers around nuclear weapons facilities. In this position, he was the chief architect of an initiative to compensate workers who developed occupational illnesses from exposure to radiation, beryllium and other hazards.

On December 1, the Senate Judiciary Committee held a hearing to consider legislation that would reverse two recent Supreme Court rulings that heightened the civil pleading standard. The hearing, called “Has The Supreme Court Limited Americans’ Access To Courts?”, was held to discuss the Notice Pleading Restoration Act of 2009 (S. 1504), introduced July 22 by Sen. Arlen Specter (D-Pa) and co-sponsor Russ Feingold (D-WI).  

The legislation would reverse Bell Atlantic Corporation v. Twombly, issued in 2007, and Ashcroft v. Iqbal, issued in May.  In Twombly, an antitrust case, the Court held that a complaint must contain facts that plausibly entitle the plaintiff to relief instead of mere conclusory statements. The Iqbal decision extended this standard to all civil complaints. The Act would restore the more lenient notice prior pleading standard articulated in Conley v. Gibson, which held that a court could dismiss a complaint only if it appeared without a doubt that a plaintiff would be able to prove no set of facts in support of her claim.

In his opening statement, Senator Patrick Leahy (D-Vt), Chairman of the Judiciary Committee, testified that the two decisions are “just the latest example of conservative judicial activism” and that legislation was necessary to ensure that Americans could access the court system. Leahy stated that the new precedent “will result in prematurely closing the courthouse doors on ordinary Americans seeking the meaningful day in court that our justice system has provided” and noted that “wealthy corporate defendants” “would prefer never to be sued and never to be held accountable.”

The committee heard testimony from Stephen Burbank, a professor at the University of Pennsylvania Law School, who expressed his concerns that the Court’s recent decisions “may contribute to the phenomenon of vanishing trials, the degradation of the Seventh Amendment right to jury trial, and the emasculation of private civil litigation as a means of enforcing public law.” He testified that “the primary purpose of any legislation responding to the Court’s decisions should be to restore the status quo” “until careful study, enabled by a process that is open, inclusive, and thorough, supports the need for change.” 

John Payton, President of the NAACP Legal Defense and Educational Fund, testified that the heightened pleading standards create “a real danger” that “meritorious civil rights cases will be dismissed.” Payton urged Congress to “act immediately” to protect victims of discrimination.

On the other hand, former Solicitor General Gregory Garre defended the Court’s decisions and testified that Twombly and Iqbal were “correctly decided” and “firmly grounded in decades of prior precedent.” Garre warned that permitting cases with “implausible” claims to go forward would result in “enormous costs.”

On December 2, 2009, the House passed the Airline Flight Crew Technical Corrections Act (S. 1422) by voice vote.  This legislation amends the Family and Medical Leave Act (”FMLA”) to expand protection for airline flight crews. The bill clarifies that flight crews should be credited for all hours, not just hours spend during flight, when determining whether they have met the threshold for FMLA qualification. The FMLA provides employees who have worked at least 1,250 hours or 60 percent of a full-time work schedule in the previous year up to 12 weeks of unpaid leave for certain medical reasons. 

The bill was passed in the Senate on November 10, 2009 and now will be presented to President Obama. An almost identical bill (H.R. 912) passed in the House on February 9, 2009.