As the presidential election approaches, much uncertainty exists about the future direction of the Occupational Safety and Health Administration (OSHA
). If President Obama wins a second term, employers should expect to see a more active OSHA from a regulatory perspective, as many rules impacting the construction industry are poised to be published in either proposed or final form after the election. Additionally, construction employers could expect to see the same level of active OSHA enforcement. If Gov. Romney wins the election, some of the current regulatory initiatives may be slowed or even scrapped, but some undoubtedly will be proposed or finalized. Enforcement should continue at high levels, although some of the Obama administration’s procedures and targeting programs likely would be changed.
As such, employers must actively follow what’s going on in Washington, D.C., to ensure changes in standards, enforcement programs and guidance are internalized into their own safety and health management systems. While it is difficult to predict exactly how OSHA will proceed in 2013, following are potential significant initiatives of interest to construction employers. Regulatory Actions in the Pipeline
During the last several years, OSHA has been hard at work on several rulemakings yet to be released, but primed to move forward—all of which could have significant consequences for construction employers.
Hazard Communication Final Rule
- Injury and Illness Prevention Program (IIPP). OSHA’s IIPP rule is a regulatory priority that has been under development for almost three years. During the last several months, OSHA hinted it is ready to begin the Small Business Regulatory Enforcement Fairness Act process for the rule, whereby the agency would solicit input on the rule from affected small business entities. (However, OSHA has not officially started the process.) It is still unclear what an IIPP rule will look like because OSHA faces the challenge of creating mandatory requirements that can be applied to employers of all sizes and in all industries. It is safe to assume OSHA will not release the rule before the election, so construction employers should stay tuned on this agency priority.
- Crystalline silica. The comprehensive regulation of crystalline silica is perhaps the most significant rulemaking for the construction industry given how ubiquitous crystalline silica is on jobsites. OSHA’s draft proposed regulatory text for the rule, which was published in 2002, considered lowering the permissible exposure limit for the substance; implementing extensive “housekeeping” requirements, including prohibiting dry sweeping; requiring exposure monitoring and the establishment of regulated areas; and imposing medical surveillance obligations. The proposed regulation is still under review by the Office of Management and Budget (OMB), where it was first submitted in February 2011. Despite the delay, this initiative should be watched closely.
- Stricter injury and illness reporting obligations. OSHA has proposed requiring employers to report workplace amputations to the agency within 24 hours, as well as all in-patient hospitalizations within eight hours. Existing recordkeeping rules require employers to report in-patient hospitalizations of three or more employees to OSHA within eight hours. Any workplace fatality would continue to be reportable as well. With this proposal, OSHA is following the actions of many states that have adopted more stringent reporting requirements for amputations and in-patient hospitalizations. If President Obama wins a second term, construction employers should expect this rule to be finalized in the near term.
- Confined spaces in construction and electric power transmission and distribution. Two other standards being developing under the radar could be finalized as early as 2013. OSHA’s Confined Spaces in Construction standard, proposed in 2007, is designed to bring the construction industry the same level of protection from confined space hazards that exists in general industry, but in a way that is more tailored to construction work. Similarly, the agency has been updating its standards for electric power transmission and distribution work to bring them in line with the regulatory framework of the general industry standard for electric power, transmission and distribution (contained in 29 CFR 1910.269). This rule has been under development for years and the final rule was recently submitted to OMB for review.
Employers also must ensure they are in full compliance with the one major final rule OSHA implemented in 2012: an update of the hazard communication standard to align it with the Globally Harmonized System of Classification and Labeling of Chemicals (GHS). The GHS final rule primarily affects three aspects of the current hazard communication standard. The first and second most directly affect chemical manufacturers. The third significantly impacts any U.S. employer that uses hazardous chemicals in the workplace, including construction employers. By December 2013, construction employers covered by the hazard communication standard must have trained employees on the new hazard classifications, labels and safety data sheets required by the revised standard. New Initiatives
Outside of the regulatory arena, OSHA remains busy with new initiatives aimed at improving compliance in the areas of heat illness and falls.
In 2012, OSHA launched a nationwide outreach campaign to raise awareness among workers and employers about the hazards of working outdoors in hot weather by creating a webpage (www.osha.gov/SLTC/heatillness
) devoted exclusively to work-related heat illness. While OSHA does not have a standard that deals directly with heat stress, it could utilize the General Duty Clause of the Occupational Safety and Health Act of 1970 to cite employers for failing to take adequate steps to protect employees from heat illness. Employers should review their policies and practices to ensure they have plans in place to deal with heat stress at their worksites.
Similarly, OSHA recently launched a nationwide campaign to prevent falls in the construction industry. On its website
, OSHA provides educational materials on how to prevent falls, train employees and plan jobs safely. Fall hazards are also a major focus of enforcement in the construction industry. It is incumbent upon construction employers to ensure full compliance with OSHA’s standards related to fall protection.
Construction employers should assume that no matter who wins the election, enforcement will continue to be a priority for OSHA. The construction industry is, and will remain, under the agency’s enforcement microscope. Make sure to keep a close eye on OSHA to be a step ahead of any upcoming initiatives.