In the last few days, OSHA has announced three major enforcement efforts that impose heightened obligations upon employers. The first initiative, the Severe Violator Enforcement Program (SVEP), applies to employers who “have demonstrated indifference to their OSH Act obligations by committing willful, repeated, or failure-to-abate violations.” OSHA created the SVEP in response to scrutiny from Congress and the DOL Inspector General last year when they concluded that OSHA did not take sufficient enforcement measures against recalcitrant employers as required by the Enhanced Enforcement Program (EEP). OSHA has replaced the EEP with the SVEP to increase its enforcement efforts against employers who have demonstrated an “indifference” to workplace safety obligations in four areas: (1) fatality or catastrophe situations; (2) industries that expose employees to the most severe hazards, including those identified as “high-emphasis hazards”; (3) industries that expose employees to the potential release of highly hazardous chemicals; and (4) egregious enforcement actions.

Under the SVEP, an early draft of which was leaked a few months ago, OSHA will conduct follow-up and nationwide inspections to assess whether the violation identified in a citation occurs at other worksites or is part of a broader pattern of noncompliance in the company. OSHA will also pursue higher-profile enforcement by notifying company headquarters of site-specific issues and publishing press releases upon the issuance of citations. Finally, OSHA will seek enhanced settlement agreement provisions in any case under the SVEP, including: (1) requiring the employer to hire an independent safety and health consultant; (2) applying settlement agreements company-wide; (3) imposing interim abatement controls if final abatement cannot be accomplished in a short period; (4) requiring employers to notify OSHA of other jobsites prior to work starting at new construction sites; (5) requiring employers to report work-related injuries and illnesses on a quarterly basis and consent to inspections based on that data; and (6) requiring employers to report for a specific time period any serious injury or illness requiring medical attention, and to consent to inspections based on that data.

A second policy change is OSHA’s decision to alter its penalty classification scheme. OSHA believes that its penalties are too low to have an adequate deterrent effect. As a result, OSHA plans to expand the time frame it uses to consider an employer’s history of violations when determining penalty enhancement and reductions and when issuing repeat citations. OSHA plans to increase this period from three to five years. This change will likely increase the number of repeat violations and lower the chances that an employer will receive a penalty reduction based on OSHA history. Another notable change is the limitation on area directors’ settlement authority during the informal conference stage of a case. Under this new scheme, area directors will be limited to a 30% maximum penalty reduction for employers during an informal conference. To obtain any penalty reduction beyond this 30%, area directors will have to obtain approval from regional administrators. OSHA anticipates that the new penalty classification scheme will increase the overall dollar amount of penalties. For example, OSHA predicts the average penalty for a serious violation will increase from $1,000 to $3,000 to $4,000.

A third, somewhat longer range regulatory initiative is OSHA’s plan to initiate a rulemaking for an injury and illness prevention program rule that will require employers to “find and fix” hazards in their workplaces. The rule would contain three distinct parts requiring employers to plan, prevent, and protect employees from workplace injuries and illnesses. Under the rule, OSHA would require employers to create a plan for identifying and remedying risks associated with hazards and OSHA violations. Employers would have to take significant steps to implement the plan and cannot get by with drafting a plan but taking few steps to ensure implementation. Finally, employers will have to ensure that the plan’s objectives are met on a regular basis.

On April 26, 2010, OSHA published an agenda for regulations it has selected to review or develop over the next 12 months. The eight-item agenda contains the following regulatory items in the pre-rule, proposed rule, and final rule stages (all dates are tentative and subject to change):  

Regulations in Final Rule Stage

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.  

In February 2011, OSHA expects to issue a final rule 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.  

Regulations in Proposed Rule StageBy October 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. 

By February 2011, OSHA expects to publish a notice of proposed rulemaking for crystalline silica. OSHA completed a peer review of the occupational exposure standard for crystalline silica as part of the process for developing the proposed rulemaking. This review included an analysis of the possible health effects resulting from such exposure and the economic impact that recommended protective measures will have on employers.

Regulations in Pre-Rule Stage

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 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 Small Business Regulatory Business Fairness Act (”SBREFA”) panel that published a report, including a draft proposed rule, on occupational exposure to diacetyl. 

In November 2010, OSHA plans to complete a peer review of occupational exposure to beryllium. In January 2008, OSHA completed a SBREFA panel that published a report, including a draft proposed rule, on occupational exposure to beryllium.

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 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 November 18, 2009, the Senate Health, Education, Labor, and Pensions Committee approved President Barack Obama’s nomination of Dr. David Michaels as the Assistant Secretary of Labor for the Occupational Safety and Health Administration. During an Executive Session, a majority of the Committee voted in favor of the nomination. Senators Richard Burr (R-NC) and Tom Coburn (R-OK) voted against the nomination.

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 November 16, 2009, the United States Government Accountability Office (GAO) released an October 2009 report finding that OSHA’s efforts to verify employers’ workplace injury and illness data may not be adequate. OSHA monitors workplace injury and illness data to allocate enforcement and outreach resources, evaluate programs’ effectiveness, and determine standards development priorities.

The GAO report focused on OSHA’s efforts to verify the data it collects from employers on workers’ injuries and illnesses through its annual OSHA Data Initiatives survey. The GAO report found that OSHA does not always require inspectors to interview workers about injuries and illnesses. GAO observed that these interviews could help OSHA evaluate the accuracy of the records because they are the only source of data not provided by the employers. During interviews with OSHA inspectors, GAO learned that OSHA conducts records audits approximately two years after incidents are recorded, thus many workers are no longer employed at the worksite and cannot be interviewed.

The GAO report also found that OSHA does not review the accuracy of injury and illness records for worksites in eight high hazard industries because it has not updated the industry codes used to identify these industries since 2002. GAO learned that an update of industry codes requires a regulatory change that is not currently an agency priority.

GAO made four recommendations to OSHA to verify the accuracy of employer-provided injury and illness data: (1) require inspectors to interview workers during records audits to obtain information on injuries or illnesses; (2) minimize the amount of time between the date employers record injuries or illnesses and the date OSHA conducts an audit; (3) update the list of high hazard industries used to select worksites for records audits and other purposes; and (4) increase education and training to employers to help them determine which injuries and illnesses are recordable.

Prior to the report’s release, OSHA submitted a response to a draft report it received from GAO. In its response, OSHA stated it shares the concerns addressed by GAO. Accordingly, OSHA plans to (1) require inspectors to interview employees during record audits; (2) develop policies to conduct record audit inspections in a timely fashion; (3) pursue rulemaking to update the industry coverage of the recordkeeping rule; and (4) supplement current educational outreach programs.

On November 10, 2009, President Barack Obama nominated Cynthia Attwood as a Member of the Occupational Safety and Health Review Commission (OSHRC). OSHRC is a quasi-judicial agency responsible for adjudicating occupational safety and health cases.

Attwood has served as an Administrative Appeals Judge for the Department of Labor’s Administrative Review Board, as well as an Attorney Advisor for the Board.  She also has served in the Senior Executive Service at the Department of Labor, both as the Associate Solicitor for Occupational Safety and Health, and the Associate Solicitor for Mine Safety and Health.

On October 21, 2009, OSHA published an Advance Notice of Proposed Rulemaking to address the fire and explosion hazards related to combustible dust. The advanced notice includes requests for comments and information regarding the definition of combustible dust, hazard recognition, hazard assessment, hazard communication, and training. 

The advance notice comes after the Chemical Safety and Hazard Investigation Board (”CSB”) conducted a study of dust explosion incidents between 1980 and 2005. Based on this study, the CSB listed five recommendations for OSHA to implement: (1) revise the hazard communication standard to clarify the coverage and requirements related to combustible dust; (2) communicate with the United Nations Economic Commission for Europe to amend the Globally Harmonized System to address combustible dust hazards; (3) provide combustible dust-related training through the OSHA Training Institute; (4) implement a special emphasis program for combustible dust; and (5) issue a standard designed to prevent combustible dust fires and explosions. OSHA has addressed the first four recommendations and this rulemaking addresses the fifth recommendation.

This advanced notice also comes after Congressional pressure on OSHA to focus on combustible dust. On July 29, 2008, the Senate Subcommittee on Employment and Workplace Safety held a hearing to examine whether OSHA was adequately enforcing its National Emphasis Program for combustible dust. The hearing focused on a February 7, 2008 combustible dust explosion that resulted in 14 fatalities at an Imperial Sugar Company plant.

On February 4, 2009, Reps. Miller (D-CA), Barrow (D-GA), and Woolsey (D-CA) introduced the Workers Protection Against Combustible Dust Explosions and Fires Act (H.R. 849), which would require the Secretary of Labor to issue interim and final regulations regarding working exposure to combustible dust. On March 23, 2009, the Act was referred to the Subcommittee on Workforce Protections. This legislation is similar to previous legislation passed by the House on April 30, 2008. 

OSHA has also asked for public comments in connection with this advanced notice. The comment period will remain open until January 19, 2010. Comments may be submitted in three ways:  1) post the comments electronically through the Federal eRulemaking Portal at http://www.regulations.gov/, 2) send three copies to the OSHA Docket Office, Docket No. OSHA-2009-0023, Technical Data Center, Room N-2625, U.S. Department of Labor, 200 Constitution Avenue, N.W., Washington, D.C., 20210, or 3) fax the comments to 202-693-1648. Comments must include the Agency name and Docket Number for this rulemaking:  OSHA-2009-0023.

On October 1, 2009, OSHA announced a new National Emphasis Program (NEP) that targets occupational injury and illness records prepared by employers.   

Under this NEP, OSHA will complete the following steps for a records inspection:  obtain copies of an employer’s OSHA Form 300, a full roster of employees, the total numbers of hours worked, and the average number of workers; review individual employee’s records; review an employer’s log to identify cases that do not meet OSHA’s recordability criteria; interview the employee in charge of maintaining injury and illness records; interview employees who are likely to be injured or become ill; interview management representatives; interview first-aid providers and health care professionals; and conduct a limited walkaround safety and health inspection. 

The NEP focuses on selected industries with high injury and illness rates, including scheduled passenger air transportation, animal slaughtering, steel foundries, soft drink manufacturing, couriers, mobile home manufacturing, rolling mill machinery and equipment manufacturing, iron foundries, and nursing care facilities.

This program went into effect on September 30, 2009.

On September 30, 2009, OSHA published a proposed rule to modify its existing Hazard Communication Standard (HCS). The proposed revisions represent OSHA’s effort to conform the HCS with the United Nations’ globally harmonized system of classification and labeling. OSHA expects that this proposed rule will improve the quality and consistency of information regarding chemical hazards, and their associated protective measures, for employers and employees.     

In its current form, the HCS requires chemical manufactures and importers to examine whether or not the chemicals they produce or import are hazardous. If a chemical is determined to be hazardous, the manufacturer or importer must develop and provide a container label and a safety data sheet to inform employers and employees of the chemical’s hazards and any protective measures associated with the hazard. Employers with hazardous chemicals in the workplace must implement a hazard communication program, which includes hazard identification, labeling, safety data sheets, a written hazard communication program, and employee training.   

Under the proposed rule, employers must provide more detailed and specific classifications for chemical hazards, including the type of hazard present and the severity of the hazard. The proposed rule also requires specific formats for safety data sheets, standardized signal words, pictograms, hazard statements, and precautionary statements for container labels, and employee training on the proposed safety data sheet and container labeling requirements. Because the globally harmonized system does not include a written hazard communication program, OSHA does not propose to make any changes to the existing written hazard communication program requirements.

Comments should be sent to OSHA by December 29, 2009.  Comments may be submitted to OSHA electronically at http://www.regulations.gov/; by fax to the OSHA Docket Office at (202) 693-1648; or by mail to the OSHA Docket Office, Docket No. OSHA-H022k-2006-0062, U.S. Department of Labor, Room N-2625, 200 Constitution Avenue, NW, Washington, DC 20210.