The last year of President Obama’s administration is fast approaching and 2016 looks to be a busy time for the Occupational Safety and Health Administration (OSHA), as it attempts to finalize significant rulemakings and guidance documents.
Here are the top five OSHA changes to look out for in 2016.
OSHA Penalties Are Going Up
After years of lobbying from OSHA to increase the penalty amounts, Congress passed the Bipartisan Budget Act of 2015, which President Obama signed into law on Nov. 2, 2015. Section 701, “Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015,” requires OSHA to increase its civil penalties for the first time since 1990. Under the act, a one-time “Catch Up Adjustment” will occur in 2016 and yearly increases based on the Consumer Price Index will occur each year after that. To effectuate these changes, OSHA will adjust the civil monetary penalties through an interim final rule next year. The increased penalty adjustment must come into effect by Aug. 1, 2016.
It is expected that after the interim final rule is put into place that the ceiling for a serious or other-than-serious citation will jump from $7,000 to around $12,000. A willful or repeat citation could rise as high as approximately $127,000 from the current $70,000. With increased penalty amounts comes increased financial risk and liability for each OSHA violation found. Now is a good time to review safety policies and focus on retraining employees on the rules and requirements in place for working safely.
Silica Rule Is Expected February 2016
In its fall regulatory agenda, OSHA indicated that the Final Rule for the Occupational Exposure to Crystalline Silica is expected to be published in February 2016. It is not clear what the final rule will look like but it is expected to follow closely the proposal in these key areas:
- Exposure Monitoring and Assessment. Provide exposure monitoring of employees who are or may reasonably be expected to be exposed to respirable crystalline silica at or above the Action Level of 25µg/m³ every six months if the initial monitoring indicates that employee exposures are at or above the Action Level and every three months if the initial monitoring indicates that employee exposures are above the PEL.
- Regulated Areas or Access Control Plan. Establish and implement either a regulated area or an access control plan whenever an employee’s exposure to respirable crystalline silica is, or can reasonably be expected to be, in excess of the PEL.
- Engineering and Administrative Controls. Establish and implement engineering and administrative controls, such as local exhaust ventilation and wet cutting whenever feasible, for reducing exposures to crystalline silica before implementing respiratory protection.
- Protective Work Clothing and Respiratory Protection. Provide appropriate protective clothing such as coveralls or similar full-bodied clothing or a means to remove excessive silica dust from contaminated clothing if there is a potential for employees’ work clothing to become grossly contaminated with crystalline silica. Provide respiratory protection when employees may be exposed to silica about the PEL or during periods when the employee is in a regulated area.
- Medical Surveillance. Provide medical surveillance at no cost for each employee who will be occupationally exposed to respirable crystalline silica above the PEL for 30 or more days per year. Medical surveillance includes a medical examination within 30 days after initial assignment and periodic medical examinations at least every three years or more.
- Hazard Communication and Training. Communicate and train employees on the hazards associated with crystalline silica under the Hazard Communication Standard, 29 C.F.R. § 1910.1200, and ensure that each employee has access to labels on containers of crystalline silica and safety data sheets.
The silica rule will likely be enforceable within 90 to 180 days after it becomes final. Employers are encouraged to start planning now for the possible changes that could occur–especially for the exposure monitoring, engineering and administrative controls, and medical surveillance components–which will likely require working with third parties and spending significant resources to fully effectuate.
Recordkeeping and Disincentive Policies Final Rule Expected March 2016
The Agency’s “Improve Tracking of Workplace Injuries and Illnesses” rule is expected to be final in March 2016. These regulations are anticipated to add new electronic reporting obligations to most employers that are required to keep OSHA 300 Logs and, as with the silica rule, it is expected that the final rule will track the proposed rule closely. In particular, OSHA will require employers with more than 250 employees (per establishment) to submit their OSHA 300 Logs to the agency on a quarterly basis. In addition, employers with 20 employees or more at any time in the previous calendar year (per establishment) will be required to electronically submit to OSHA on a yearly basis the information provided on OSHA Form 300A. OSHA would, in turn, post the OSHA 300 Logs and 300A Forms on its website and make the information publicly available to anyone who would like to review them.
OSHA believes that publicly posting such information will essentially shame employers into implementing safer work practices and give the public and employees information on the safety of a business.
In addition to electronic recordkeeping, the agency also may make certain safety incentive programs illegal and subject to OSHA citations irrespective of any recordkeeping or safety violations, if those programs are deemed to “discourage” employee reporting of injuries and illnesses. While it is unclear exactly what the regulatory language will look like, OSHA asked several questions about certain practices that could discourage employees from reporting injuries and illnesses in the proposed rule. These examples may give employers a clue as to the types of safety incentive programs that OSHA may ban:
- making employees who report an injury or illness wear fluorescent vests;
- disqualifying employees who report two injuries or illnesses from their current job;
- requiring an employee who reports an injury to undergo drug testing where there was no reason to suspect drug use;
- automatically disciplining employees who seek medical attention; and
- enrolling employees who report an injury in an “Accident Repeater Program” that includes mandatory counseling on workplace safety and progressively more serious sanctions for additional reports.
Employers are encouraged to review their safety incentive programs to assess whether they could possibly discourage employee reporting of injuries and illnesses and consider making changes if any of the examples mentioned by OSHA are a part of their program. In lieu of these items, consider implementing OSHA-approved incentive programs that promote worker participation in safety-related activities, such as identifying hazards or participating in investigations of injuries, incidents or near misses; providing t-shirts to workers serving on safety and health committees; offering modest rewards for suggesting ways to strengthen safety and health; or throwing a recognition party at the successful completion of company-wide safety and health training.
Updated Safety and Health Program Management Guidelines Will Be Issued
OSHA is seeking public comment on its updated voluntary Safety and Health Program Management Guidelines (OSHA-2015-0018). The guidelines have been updated to reflect modern technology and practices, as well as incorporate approaches taken in two OSHA programs: the Voluntary Protection Program (VPP) and Safety and Health Achievement Recognition Program (SHARP). Comments must be received by Feb. 15, 2016.
OSHA considers the guidelines to be a proactive approach to safety, with a focus on finding and fixing hazards before they can cause injury or illness. The guidelines are divided into seven, color-code “core elements” that, in OSHA’s view, every good safety program should incorporate. Each core element contains action items and ways to accomplish the following.
- Management Leadership. Top management demonstrates its commitment to continuous improvement in safety and health, and communicates that commitment to workers and sets program expectations and responsibilities.
- Worker Participation. Workers are involved in all aspects of the safety and health program, including identifying and reporting hazards, participating in investigation incidents and tracking progress on program implementation.
- Hazard Identification and Assessment. Procedures are put in place to continually identify workplace hazards and evaluate risks through initial and periodic assessments and inspections.
- Hazard Prevention and Control. Processes are developed that ensures controls are implemented, the effectiveness of those controls is verified and progress on controlling hazards is tracked.
- Education and Training. All workers, including temporary workers, are trained on how to carry out the responsibilities assigned to them under the program, recognize hazards and implement control measures.
- Program Evaluation and Improvement. Processes are established to monitor program performance and identify deficiencies and opportunities for improvement, and take actions necessary to improve the program.
- Coordination and Communication on Multi-Employer Worksites. Host employer and all contract workers coordinate on work planning and scheduling and are informed about hazards that are present at the worksite or created by the work.
In addition to a discussion of the program elements, the voluntary guidelines provide two appendices that employers might find helpful. Appendix A offers Implementation Tools and Resources which, when viewed online, contain links to various training tools and related OSHA materials and Appendix B, entitled “Relationship of Guidelines to Existing OSHA Standards,” contains color-coded tables detailing the existing standards with their connection to the seven core elements.
While these are voluntary guidelines, OSHA frequently requires that employers implement these guidelines as part of settlement of citations. Thus, employers should become familiar with them and consider whether there are elements that can be implemented to improve safety and health and provide comment.
On the Horizon
On Nov. 20, 2015, the fall semi-annual regulatory agenda for all federal agencies was published in the Federal Register. The regulatory agenda for OSHA includes 31 regulatory actions at various stages of the rulemaking process. These regulatory agenda items could impact the construction industry:
- Preventing Back-Over Injuries and Fatalities. Anticipated that OSHA will propose a rule on preventing back-over injuries and the hazards and risks of reinforcing concrete operations in construction.
- Chemical Management and Permissible Exposure Limits (PELs). Anticipated that OSHA will propose a rule on approaches it may take to reduce the PELs or implement new PELs for chemicals developed since the last updates that help it keep up with modern technology and scientific advancements in chemical production.
- Updating OSHA Standards Based on National Consensus Standards Eye and Face Protection. Anticipated that OSHA will propose a rule that incorporates the 2010 edition of the American National Standard, Z87.1 Eye and Face Protection, for construction.
- Quantitative Fit Testing Protocol: Amendment to the Final Rule on Respiratory Protection. Anticipated that OSHA will propose a rule that will consider three new quantitative fit test protocols for selecting appropriate respirators.
- Amendments to the Cranes and Derricks in Construction Standard. Anticipated that OSHA will propose a rule that makes corrections and amendments to the final standard for cranes and derricks published in August 2010.
Keep an eye out for these and other regulatory changes, as well as new guidance documents as OSHA officials attempt to make the most out of the Obama administration’s final year in office. The next year could set the stage for many years to come.