Washington D.C. Employment Law Update : Washington D.C. Employment Lawyer & Attorney : Littler Mendelson Law Firm : Virginia, Tyson's Corner

Inspectors will also assess whether employers have adequately trained temporary workers in a language and vocabulary they can understand. According to the memo, “[r]ecent inspections have indicated problems where temporary workers have not been trained and were not protected from serious workplace hazards due to lack of personal protective equipment when working with hazardous chemicals and lack of lockout/tagout protections, among others.”

If OSHA Compliance Safety and Health Officers (CSHO) encounter temporary workers during an inspection, they are directed to “document the name of the temporary workers' staffing agency, the agency's location, and the supervising structure under which the temporary workers are reporting (i.e., the extent to which the temporary workers are being supervised on a day-to-day basis either by the host employer or the staffing agency).”

According to information in an agency news release, fatal work injuries involving temporary workers accounted for 542 (12%) of the 4,693 fatal work injuries reported in 2011.

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According to the notice posted in the May 17, 2012 edition of the Federal Register, the new Whistleblower Protection Advisory Committee (WPAC) will be charged with making recommendations regarding the development and/or implementation of:

• Better customer service to both workers who raise complaints and employers who are the subject of investigations;
• Improvement in the investigative and enforcement process, and the training of OSHA investigators;
• Improvement of regulations governing OSHA investigations;
• Cooperative activities with federal agencies responsible for areas also covered by the whistleblower protection statutes enforced by OSHA; and
• Other matters concerning the fairness, efficiency and transparency of OSHA's whistleblower investigations as identified by the Secretary or the Assistant Secretary.

In a news release, OSHA’s Assistant Secretary of Labor David Michaels said:

Workers who expose securities and financial fraud, adulterated foods, air and water pollution, or workplace safety hazards have a legal right to speak out without fear of retaliation, and the laws that protect these whistleblowers also protect the health, safety and well-being of all Americans . . . Establishing a federal advisory committee is another important effort to strengthen protections for whistleblowers.

Federal agencies have increased their efforts to target whistleblower violations in recent months. On March 1, 2012, OSHA announced its plans to have the Office of the WPP report directly to OSHA’s Office of the Assistant Secretary instead of to its Directorate of Enforcement Programs. Later that month, OSHA Deputy Assistant Secretary Richard E. Fairfax issued a memo directing field compliance officers and whistleblower investigators to keep an eye out for workplace policies and practices – including employer safety initiatives – that could discourage employees from reporting injuries. On March 28, the DOL’s Administrative Review Board (ARB) released a decision finding that the whistleblower protections afforded under the Consumer Product Safety Improvement Act of 2008 are not limited to “consumer products” nor to matters strictly under the Consumer Product Safety Commission’s jurisdiction.

To support these enforcement initiatives, the DOL’s proposed budget for fiscal year 2013 would allocate an additional $5 million over last year’s OSHA funding to carry out its whistleblower programs.

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Speaking on the first hearing panel was GAO Director Revae Moran. She discussed the GAO report, and stated that between 1981 and 2010, it took OSHA between 15 months and 19 years to finalize a total of 58 safety standards. She explained that 15 percent of these rules took more than 10 years to be issued. This significant lag was due, in large part, to the agency’s “shifting priorities,” administrative requirements placed on the agency, and the high standard of judicial review for OSHA rules. Specifically, Moran explained that a 1993 executive order required that all significant rules be subject to a cost/benefit analysis which, she claimed, can add several months to the rulemaking process. In 1996 OSHA became one of three agencies required under the Small Business Regulatory Enforcement Fairness Act (SBREFA) to convene small business panels to determine the impact rules would have on these entities. Under questioning from Sen. Harkin, Moran also noted that OSHA’s rules are subject to a high standard of review. Namely, OSHA must demonstrate that there exists substantial evidence of a material impairment to a worker to support its rule-making effort, while other agencies must show only that the rule is not arbitrary and capricious.

The GAO report makes only one recommendation to expedite the rulemaking process, however. Specifically, the report recommends that OSHA and the National Institute for Occupational Safety and Health (NIOSH) work more closely in researching occupational hazards so that OSHA can avail itself of NIOSH’s expertise. Some lawmakers and panelists criticized this lone recommendation. For example, Clinical Professor of Environmental and Occupational Health Michael Silverstein claimed that OSHA and NIOSH have been working together for the past 40 years. While he noted that while collaboration is a good thing, it would not solve OSHA’s rulemaking process.

Sen. Al Franken (D-MN) asked Moran whether other suggestions presented by other panelists – including the use of voluntary consensus standards – would be a viable option. Moran responded that it would take a legislative act to allow such standards to suffice, as OSHA is held to certain specific and high standards. Moran did, however, advocate – as did several other panelists –that once OSHA determines the need for a safety standard, it “must be able to move forward as efficiently and effectively as possible.”

Need for Rule Deadlines, OMB Reform, Business Involvement

Some witnesses supported the idea that Congress should impose mandatory deadlines for OSHA standards. Randy Rabinowitz, Director of Regulatory Policy for OMB Watch, claimed that doing so would significantly expedite the process. GAO Director Moran noted during her testimony that there were statutorily set timeframes for establishing 9 of the 58 standards examined. According to Moran, these rules were finalized, on average, in half the time.

Rabinowitz also spoke in favor of more transparency for the Office of Management and Budget. According to Rabinowitz, OMB review of an OSHA rule takes anywhere from a few months to a few years. Professor Silverstein agreed that OSHA is subject to “innumerable procedural delays” through OMB review. Among other suggestions, Rabinowitz said that Congress should require OMB to keep a public record of its meetings and disclose the changes it requires the agency to make to any rule during the process. Like many of her fellow panelists, Rabinowitz also suggested that OSHA “should pick a few hazards and see these priorities through” without shifting focus. In addition, she was in favor of allowing OSHA to rely on existing scientific analysis so that it is not forced to reinvent the wheel for subsequent rules.

Speaking on behalf of the Chamber of Commerce, attorney David G Sarvadi reiterated the call for OSHA to “set priorities and stick to its list.” He also recommended that the agency get industry experts involved and consult with businesses “often and early” in the rulemaking process.

Ranking member Mike Enzi (R-WY), however, was opposed to Congress setting dates for rules. He claimed that this is a job best left to scientific experts. He noted that since 2003 reported instances of injuries and illnesses have decreased by 30 percent, and that, although regulation is one way to further reduce this rate, OSHA should be encouraged to pursue multiple methods of injury and illness reduction. Specifically, Enzi claimed that voluntary programs such as the Voluntary Protection Program (VPP) is a means of promoting safe workplaces, but that this program is being “threatened and undermined under the current administration.” Enzi expressed the desire to bring a bi-partisan bill he co-sponsored – the Voluntary Protection Program (VPP) Act  – for markup. This bill would strengthen the VPP and make it permanent.

Panelist Silverstein agreed that the VPP is a beneficial program, but cautioned that it is often “mischaracterized as causing workplaces to become safe.” He noted that the VPP is a recognition program, which awards employers that have proven records of safe workplaces.

Enzi also criticized OSHA’s new hazard communication standard, which he claims includes provisions not discussed during stakeholder meetings. In particular, he found fault with the rule’s inclusion of information on combustible dust and the creation of a new category of “hazards not otherwise classified.”

During panelist questioning, Enzi also asked attorney Sarvadi about an OSHA memo issued earlier this year that directs field compliance officers and whistleblower investigators to keep an eye out for workplace policies and practices, including employer safety initiatives that could discourage employees from reporting injuries. Enzi asked whether this memo was an important use of the agency’s authority. Sarvadi responded that he was unsure “why this idea has persisted.” According to him, “there is no suggestion that there is a widespread underreporting.” He mentioned that employers must be careful to ensure that their incentive programs are not used inappropriately, but that this is a rulemaking issue.

A complete list of panelists and links to their testimony and an archived webcast of the hearing can be found here.

The impetus for this renewed focus on nursing and residential care facilities, according to OSHA, is findings by the Bureau of Labor Statistics (BLS) that the rate of employee injury and illness that results in days away from work, restricted work activity and job transfers (the “DART” rate) is particularly high in this industry. Specifically, the BLS found that in 2010, employees in nursing and residential care facilities lost work due to workplace injuries and illnesses at a rate that was 2.3 times higher than that experienced by employees in all private industries as a whole. Therefore, under the new NEP, OSHA will look closely at nursing and residential care facilities that have a DART rate of 10 or higher per 100 full-time workers.

The NEP’s executive summary explains that the program does not include any significant changes to the industry specific NEP OSHA conducted ten years ago, apart from the fact that the new NEP includes sections addressing workplace violence. In September 2011, OSHA issued a compliance directive – Enforcement Procedures for Investigating or Inspecting Incidents of Workplace Violence – that established uniform procedures for OSHA field officers when responding to incidents and complaints of workplace violence. The new NEP states that workplace violence “is a recognized hazard in nursing and residential care facilities.” Pursuant to the workplace violence directive, therefore, OSHA compliance officers who conduct programmed inspections at these facilities are instructed “to investigate for the potential or existence of this hazard.”

The current NEP addresses enforcement-related procedures only. The NEP stipulates that voluntary guidelines published by OSHA will not be used as a basis for citations issued under this NEP.

In a press release, David Michaels, assistant secretary of labor for occupational safety and health, said: “These are people who have dedicated their lives to caring for our loved ones when they are not well. It is not acceptable that they continue to get hurt at such high rates," adding, “Our new emphasis program for inspecting these facilities will strengthen protections for society's caretakers."

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According to a fact sheet on the new rule, the following are the major changes implemented by the revised standard:

• Hazard classification: The rule provides specific criteria for classification of health and physical hazards, as well as classification of mixtures.
• Labels: Chemical manufacturers and importers will be required to provide a label that includes a harmonized signal word, pictogram, and hazard statement for each hazard class and category. Precautionary statements must also be provided.
• Safety Data Sheets: Will now have a specified 16-section format.
• Information and training: Employers are required to train workers by December 1, 2013 on the new labels elements and safety data sheets format to facilitate recognition and understanding.

Changes from the Proposed to the Final Rule include:

• Maintaining the disclosure of exposure limits (Threshold Limit Values [TLVs]) established by the American Conference of Governmental Industrial Hygienists (ACGIH) and carcinogen status from nationally and internationally recognized lists of carcinogens on the safety data sheets;
• Clarification that the borders of pictograms must be red on the label;
• Flexibility regarding the required precautionary and hazard statements to allow label preparers to consolidate and/or eliminate inappropriate or redundant statements; and
• Longer deadlines for full implementation of the standard.

OSHA had proposed to add a definition to the HCS for “unclassified” hazards, raising concerns about the application of this broad new term. The final rule retains the proposed requirement, using the term “hazard not otherwise classified” (HNOC) instead of unclassified hazard. According to OSHA:

In essence, this definition requires classifiers who find “scientific evidence” that a chemical can cause death, illness, or injury to workers in a way not currently covered by the GHS classification criteria to disclose that fact on the SDS. This is meant to be a modest and narrow requirement. It is triggered only when the classifier has objective, scientific evidence of the hazard. OSHA believes that there are likely to be few such hazards outside those covered by the specific criteria in the final rule, which are the product of over thirty years of international experience in hazard communication.

The rule includes a phase-in process for implementation. By December 1, 2013, employers will be required to train their employees on the new label elements and safety data sheet format. By June 1, 2015, employers, chemical manufacturers, importers, and distributors will be required to comply with all modified provisions of the final rule except that distributors may ship products labeled by manufacturers under the old system until December 1, 2015. By June 1, 2016, employers will be required to update alternative workplace labeling and hazard communication program as necessary, and provide additional employee training for newly identified physical or health hazards. During this transition period, chemical manufacturers, importers, distributors and employers may comply with either 29 Code of Federal Regulations 1910.1200 (the final standard), the current standard or both.

According to a press release, the revised standard is intended to improve worker safety by “reducing confusion about chemical hazards in the workplace, facilitating safety training and improving understanding of hazards, especially for low literacy workers.”

A more detailed analysis of this final rule and its implications for employers will be forthcoming. In the interim, OSHA guidance materials on this new regulation can be found here.

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An assessment published last year by the Government Accountability Office (GAO) found OSHA’s Whistleblower Protection Program lacking. This report prompted an internal agency investigation of the whistleblower program, followed by an announcement in August 2011 that the program would undergo a major overhaul.  The following month OSHA released an updated Whistleblower Investigations Manual (pdf) containing revised case handling procedures and information on new laws – including the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 and the Affordable Care Act – enacted since the last manual was issued. OSHA has also launched pilot projects “to evaluate structural changes in 10 field regions that could further strengthen the whistleblower program.” According to Michaels, “OSHA's internal improvement initiatives, including this realignment, demonstrate the agency's steadfast commitment to strengthening a program that is critically important to the protection of worker rights."

The amount of funding allocated to the whistleblower program supports these new efforts. The Department of Labor’s proposed budget for fiscal year 2013 would provide a $5 million increase in OSHA’s funding for whistleblower enforcement.

According to OSHA’s announcement, Sandra Dillon, who had been serving as OWPP’s acting director since May 2011, will now serve as its director.

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According to OSHA – which is charged with enforcing the whistleblower provisions contained in 21 separate statutes – the new interim regulations “clarify and improve” the procedures for handling Sarbanes-Oxley whistleblower complaints, and make them consistent with the procedures in place for handing similar complaints under the other statutes over which OSHA has jurisdiction. In September, OSHA revised its Whistleblower Investigations Manual  to reflect these new case handling procedures.

Among other revisions, OSHA’s interim final rule does the following:

• Changes certain terms for consistency (i.e., actions will be filed for “retaliation” instead of for “discrimination).
• Describes the activities that are protected under Sarbanes-Oxley and the conduct that is prohibited in response to any protected activities.
• Revises the statute of limitations for filing complaints from 90 to 180 days.
• Eliminates the requirement that whistleblower complaints to OSHA under Sarbanes-Oxley be detailed and in writing. Under the new regulations, “consistent with OSHA’s procedural rules under other whistleblower statutes, complaints filed under Sarbanes-Oxley need not be in any particular form. They may be either oral or in writing.”
• Describes the procedures that apply to the investigation of Sarbanes-Oxley complaints;
• With respect to the burdens of proof necessary to sustain a claim, the regulations state that the complaint will be dismissed unless the complainant has made a prima facie showing that protected activity was a contributing factor in the alleged adverse action. The preamble to the regulations explains that it is the Secretary’s position that complainant must prove by a “preponderance of the evidence” that his or her protected activity contributed to the adverse action; otherwise the burden never shifts to the employer to establish its defense by “clear and convincing evidence.”
• Explains that once the complainant establishes that the protected activity was a contributing factor in the adverse action, the employer can escape liability only by proving by clear and convincing evidence that it would have reached the same decision even in the absence of the prohibited rationale. The “clear and convincing evidence” standard is a higher burden of proof than a “preponderance of the evidence” standard.
• Explains that among other remedies, “in appropriate circumstances, in lieu of preliminary reinstatement, OSHA may order that the complainant receive the same pay and benefits that he received prior to his termination, but not actually return to work. Such ‘economic reinstatement’ is akin to an order of front pay. According to OSHA, “economic reinstatement is designed to accommodate situations in which evidence establishes to OSHA’s satisfaction that reinstatement is inadvisable for some reason, notwithstanding the employer’s retaliatory discharge of the employee.” The agency notes, however, that “there is no statutory basis for allowing the employer to recover the costs of economically reinstating an employee should the employer ultimately prevail in the whistleblower adjudication.”
• Outlines the various litigation steps, rules of and process for appealing decisions, and the roles of federal agencies involved.

The new interim procedures are effective as of November 3, 2011. Comments on these regulations are due within 60 days of the procedures’ publication in the Federal Register, which is scheduled for November 3. Comments may be submitted electronically through the federal eRulemaking portal; via fax to (202) 693-1648 (if comments do not exceed 10 pages); or by mail or hand-delivery to: OSHA Docket Office, Docket No. OSHA-2011-0126, U.S. Department of Labor, Room N-2625, 200 Constitution Avenue, N.W., Washington, D.C. 20210.

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To this end, the main changes to the Investigations Manual include the following:

• New chapters are added to provide information on investigating and processing whistleblower complaints filed under the Federal Railroad Safety Act (FRSA), National Transit Systems Security Act (NTSSA), and the Consumer Product Safety Improvement Act (CPSIA). In addition, the manual includes significant updates to the Surface Transportation Assistance Act (STAA) and to the Sarbanes-Oxley chapters, which reflects amendments made in the Dodd-Frank Wall Street Reform and Consumer Protection Act.
• The manual requires investigators to attempt to interview the complainant in all cases.
• The manual contains an expanded discussion of causation, burdens of proof, and the elements of a violation. As part of the intake process, the supervisor must verify that applicable coverage requirements have been met and that the prima facie elements of the allegation have been properly identified.
• The instruction specifies that whistleblower complaints under any statute may be filed orally or in writing, in any language, and that OSHA will be accepting electronically-filed complaints on its Whistleblower Protection Program website.
• The manual clarifies certain aspects of the investigation process, including the method and recording of interviews, and the processing of dually-filed 11(c) complaints in state plan states.
• The manual includes changes in procedures for handling Privacy Act files and Freedom of Information Act requests.
• The manual explains that interest on back pay and other damages is to be computed by compounding daily the IRS interest rate for the underpayment of taxes.
• Finally, the manual sets forth additional guidance addressing uncooperative respondents and the process of issuing administrative subpoenas during whistleblower investigations.

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Generally, the SST “defines key terms, describes the three inspection lists, provides scheduling and inspection procedures, and gives information on OSHA coding.” In addition, the report includes three appendices that provide information on the industry groups included in the 2010 ODI, includes a checklist for compliance safety and health officers (CSHOs), and instructs Area Offices on how to use the Inspection Targeting website. The targeted employers are culled from various manufacturing, non-manufacturing, and nursing and personal care facilities.

As was the case under last year’s SST, if a CSHO discovers that an establishment slated for inspection is a Voluntary Protection Programs (VPP) site, he or she must exit the site without conducting an inspection, and the establishment must be deleted from the inspection list. Similarly, if the establishment takes part in OSHA’s Consultation Safety and Health Achievement Recognition Program (SHARP), then the inspection officer must leave the site without conducting an inspection. If the establishment’s application to either of these programs is pending, then the inspection will be deferred.

In addition to the SST program, OSHA operates a number of national and local emphasis inspection programs aimed at specific high-risk hazards and industries.

In a press release, OSHA’s Assistant Secretary of Labor David Michaels said: “By focusing our inspection resources on employers in high hazard industries who endanger their employees, we can prevent injuries and illnesses and save lives,” adding: “Through the SST program we examine all major aspects of these operations to determine the effectiveness of their safety and health efforts.”

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During the web chat, Barab noted that last year OSHA added an Injury and Illness Prevention Program standard (I2P2) to the regulatory agenda. According to Barab the proposed standard “will require employers to develop a program that will help them address their health and safety hazards in a systematic proactive way.” While OSHA has not yet set a specific date for publishing the proposed standard, Barab claimed the agency plans to begin the Small Business Regulatory Fairness Act (SBREFA) review process shortly at which time it “will be providing a draft to the SBREFA Panel, and at that time, the draft will be available to the public.” Barab said the agency will consider developing a document that compares the 1989 Safety and Health Program Management (SHPM) guidelines with the proposed I2P2 standard.

Barab clarified during the online session that the I2P2 will not involve any changes to the current review methodology and associated application of penalties for identified violations. He emphasized that “a citation for violating an existing OSHA standard or for violating the General Duty Clause does not mean that an employer will also be cited for violating the Injury and Illness Prevention Program standard.”

In response to a question about OSHA’s rulemaking regarding the electronic collection of occupational injury and illness data, Barab explained that the agency’s initiative “will not add to or change any employer’s obligation to complete and retain the injury and illness records or change the recording criteria or definitions for these records,” but rather that the proposal “will only modify employers’ obligations to transmit information from their records to OSHA.” This proposal is in draft form and has not yet been issued as a proposed rule.

While Barab answered a number of questions regarding specific rules, he also stated that the agency has “no plans” at this time to add an ergonomics standard to OSHA’s regulatory agenda, although he claimed that musculoskeletal disorders (MSDs) account for almost a third of all workplace injuries and illnesses requiring time away from work. “Rather than promulgating an ergonomic standard at this time,” Barab explained, “OSHA will continue addressing this issue through providing guidance as well as through enforcement using the general duty clause under 5 (a)(1).” Barab was also asked whether the Agency gleaned anything from small businesses from the recently re-opened docket and teleconferences that could affect the proposal to add a column specifically for MSDs that they are required to report. In response, Barab stated that: “OSHA is currently reviewing the information and input received to determine an appropriate course of action.”

In response to an inquiry as to why the proposed rule for crystalline silica has been delayed, Barab explained that the rule “is a scientifically complex effort that potentially affects a large number of workers and employers. It is among the largest health rulemakings undertaken by OSHA. Although publication of the proposed rule is taking longer than expected, OSHA continues to work diligently with OMB and is confident that the proposed rule will be published soon.”

As for a potential bloodborne pathogens standard, Barab claimed that this proposed regulation might apply to workplaces other than healthcare-related ones if there exists occupational exposure or potential exposure to blood and body fluids.

Finally, Barab mentioned that the agency has updated its publication target date for the final rule on the Hazard Communication Standard to occur in September 2011.

A transcript of the entire web chat can be found here.

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The agency plans to use the information provided during two three-hour stakeholder meetings to develop a possible rule governing occupational disease exposure. The meetings will be limited to approximately 30 participants per session, although members of the general public may observe, but not participate in, the meetings if space allows. The topics slated for discussion include the following:

• Whether and to what extent an OSHA standard on occupational exposure to infectious diseases should apply in settings where workers provide direct patient care, as well as, settings where workers have occupational exposure even though they don’t provide direct patient care. Whether and to what extent there are any other settings where an OSHA standard should apply.
• The advantages and disadvantages of using a program standard to limit occupational exposure to infectious diseases, and the advantages and disadvantages of taking other approaches to organizing a prospective standard.
• Whether and to what extent an OSHA standard should require each employer to develop a written worker infection control plan (WICP) that documents how the employer will implement the infection control measures it will use to protect the workers in its facility.
• Whether and to what extent an OSHA standard should require each employer to implement its WICP through a section addressing methods of compliance.
• Whether and to what extent an OSHA standard should require each employer to make available routine medical screening and surveillance, vaccinations to prevent infection, and post-exposure evaluation and follow-up to all workers who have been exposed to a suspected or confirmed source of an infectious agent(s) without the benefit of appropriate infection control measures.
• Whether and to what extent an OSHA standard should require the employer to establish and maintain medical records, exposure incident records, and records of reviews of its worker infection control program, and whether and to what extent an OSHA standard should contain other recordkeeping requirements.

Interested participants in the meetings – to be held on July 29, 2011 from 9:00 a.m. - noon and from 1:30 p.m. - 4:30 p.m. in the Francis Perkins Building, Room N-4437 at 200 Constitution Avenue, NW., Washington, DC 20210 – must file a request by July 22, 2011. Requests to participate in one of the meetings may be made electronically, via facsimile to: (781) 674-7200 (include "Attention: OSHA Infectious Diseases Stakeholder Meeting Registration” in the subject line) or by regular mail, express delivery, hand (courier) delivery, and messenger service to: OSHA Infectious Diseases Stakeholder Meeting Registration, Attention: Thomas Nerad, OSHA, Room N-3718, 200 Constitution Avenue, NW., Washington, DC 20210. Participants are asked to specify which meeting they would like to attend, in addition to their name, address, phone, fax, e-mail, organization for which they work and/or represent, and stakeholder category: government, industry, union, trade association, insurance, manufacturers, consultants, or other. According to OSHA, formal presentations by stakeholders will not be permitted in order to facilitate discussion.

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OSHA seeks comments on the proposal, including input on the following questions:

1. Should any additional industries be exempt from any of the recordkeeping requirements in Part 1904?
2. Should OSHA base partial exemptions on more detailed or more aggregated industry classifications, such as two-digit, three-digit, or six-digit NAICS codes?
3. Which industry sectors, if any, should be ineligible for partial exemption?
4. Instead of using an average DART rate of 75 percent of the most recent national DART rate, is there a better way to determine which industries should be included in Appendix A?
5. Should OSHA consider numbers of workers injured or made ill in each industry in addition to industry injury/illness rates in determining eligibility for partial exemption?
6. Are there any other data that should be applied as additional or alternative criteria for purposes of determining eligibility for partial exemption?
7. Should OSHA regularly update the list of lower-hazard exempted industries? If so, how frequently should the list be updated?
8. Are there any specific types of training, education, and compliance assistance OSHA could provide that would be particularly helpful in facilitating compliance with the recordkeeping requirements?

In addition, the proposed rule would require that employers report to OSHA all work-related fatalities and in-patient hospitalizations within eight hours. Currently, employers are required to do so for such incidents involving three or more employees. The proposal also would require employers to report all work-related amputations within 24 hours. With respect to this change, OSHA seeks responses to the following questions:

1. What types of incidents and/or injuries and illnesses should be reported to OSHA and why?
2. Are there any injuries, illnesses, or conditions that should be reported to OSHA and are not included among in-patient hospitalizations?
3. Should amputations that do not result in in-patient hospitalizations be reported to OSHA?
4. Should OSHA require the reporting of all amputations?
5. Should OSHA require the reporting of enucleations?
6. Are there additional data or estimates available regarding the number of work-related incidents involving in-patient hospitalizations? Is there information available on how many work-related hospitalizations occur more than 30 days after the report of an injury or illness?
7. Should OSHA allow reports to be made by means other than a telephone, such as by email, fax, or a web-based system?
8. Are the reporting times of eight hours for fatalities, eight hours for in-patient hospitalizations, and 24 hours for amputations generally appropriate time periods for requiring reporting? What advantages or disadvantages would be associated with these or any alternative time periods?

Comments on this proposal must contain the docket number: OSHA-2010-0019 or the regulatory identification number: RIN 1218-AC50 and be received on or before September 20, 2011. Comments may be submitted electronically through the federal eRulemaking portal or, if not exceeding 10 pages, via fax to: (202) 693-1648. Alternatively, comments may be sent in triplicate by mail, hand delivery, express mail, messenger, or courier service to the OSHA Docket Office, Docket Number OSHA-2010-0019, U.S. Department of Labor, Room N-2625, 200 Constitution Avenue, NW., Washington, DC 20210.

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According to a press release issued by Senator Mike Enzi (R-WY), the lead sponsor of the bill in the Senate, since the VPP’s inception in 1982, it has grown to include more than 2,200 worksites and more than 921,000 employees. The release also cites a 2007 report noting that the program has saved the government more than $59 million by avoiding injuries, private sector VPP participants have saved more than $300 million over this period, and that on average, participating workplaces experience an illness and injury rate that is 50 percent below that maintained by other workplaces in their respective industries.

Many in the business community have expressed concern that OSHA is putting the VPP on the backburner by allegedly diverting the agency’s funds to enforcement instead of prevention efforts. The bill would authorize Congress to grant the agency “such sums as may be necessary” to maintain the program. In addition, the legislation would direct the Secretary of Labor to “establish and implement, by regulation, a program to increase participation by small businesses” in the VPP.

According to Senator Enzi, “the Voluntary Protection Programs have encouraged a culture of health and safety in the workplace that saved the government and private sector millions of dollars by avoiding injuries and illnesses.” Senator Mary Landrieu (D-LA), a co-sponsor of the bill, added that; “the VPP program is a great example of how the right public-private partnership can succeed in reducing accidents at work, but these partnerships are not a replacement for stricter mandatory workplace safety guidelines, especially in dangerous occupations. Rep. Tom Petri (R-WI), the lead sponsor of the bill in House, commented that “there are times when OSHA has to be heavy handed, but most employers want to run safe workplaces. There is a lot to be gained by having OSHA recognize employers who have demonstrated a commitment to workplace safety. When OSHA does that, it creates an incentive for other employers to follow suit - and that improves safety and saves money on enforcement costs at the same time.” Another sponsor of the bill, Rep. Gene Green (D-TX) stated that “the Voluntary Protection Program is one of the few programs that has achieved unified support from both union and non-unionized labor, small and large businesses, and government.”

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Driving home that point, one witness claimed that OSHA’s planned changes to its On-Site Business Consultation program would detrimentally affect small businesses. Under this program, small and medium-sized businesses may obtain free and confidential advice from the agency regarding their safety programs. According to the attorney witness, the success of the On-Site Consultation program hinges upon the fact that problems are not shared with OSHA’s enforcement wing. He claimed that this process encourages small businesses to seek help and fix problems before a safety incident arises. The proposed changes to the criteria under which participants in the program could be subject to enforcement action by OSHA inspectors “would have an awful effect on the program” by discouraging participation. He emphasized that OSHA did not convene a Small Business Regulatory Enforcement Fairness Act (SBREFA) panel prior to proposing these changes “despite the On-site Consultation program’s focus on small business. OSHA, therefore, missed an opportunity to learn directly from small businesses about how changes would affect their participation in the program.”

Other witnesses focused on recent OSHA actions that have been withdrawn, at least temporarily, such as the proposed inclusion of a musculoskeletal disorder (MSD) column to the Form 300 Injury and Illness Log, and the proposed reinterpretation of the phrase “feasible administrative or engineering controls” as it is used in the agency’s General Industry and Construction Occupational Noise Exposure standards. As explained by Jacqueline M. Holmes, who testified on behalf of the U.S. Chamber of Commerce, the reason why the panelists focused on withdrawn rules is that it “reflects a troubling allocation of resources” on OSHA’s part. With respect to the noise exposure rule reinterpretation, which would have required employers to use administrative or engineering controls instead of personal protective equipment (PPE) to reduce noise exposure that is above the acceptable level when such controls are “capable of being done” or “achievable,” Holmes criticized that the agency for attempting to implement this change “by regulatory fiat” instead of through the normal rule-making channels. While she appreciated that the rule was withdrawn, she claimed that the plan to make the change was flawed in the first instance. According to Holmes, OSHA “made no effort to identify that there was a problem that needed solving.” She also noted that the “vast majority of employers want to do the right thing. It is good business to work safely.”

Similarly, Stuart Sessions, testifying on behalf of the Coalition for Workplace Safety, claimed that if OSHA had finalized the noise exposure reinterpretation, it would have impacted between 2 and 7 million workers, and cost employers between $2,000 and $10,000 dollars per worker, resulting in an overall cost of between $1-27 billion per year. Sessions also estimated that the rule would have resulted in a loss of 10-20,000 U.S. jobs. The witness also argued that in crafting the change as an administrative interpretation instead of as a rule, OSHA sidestepped certain Regulatory Flexibility Act requirements to address small business concerns.

Another witness emphasized the need for OSHA to work with small businesses during the initial stages of the rule-making process, as they are disproportionately affected by federal regulations. According to the panelist, OSHA should work with the Small Business Administration’s Office of Advocacy early in the rule-making process to avoid problems down the line.

The discussion of the economic burdens of regulatory action is notable in light of President Obama’s recent executive order and memoranda to federal agencies directing rulemakers to consider how regulations impact small businesses, economic growth and job creation.

Subcommittee member Rep. Dennis Ross (R-FL) raised concerns about potential new causes of action against employers that could result if the musculoskeletal disorders column is ever restored. He suggested that the onus could be put on employers to examine any causal relationship between repetitive injury and job requirements. He also noted other potential liability pitfalls, such as retaliatory discharge claims if an employee who suffers an MSD is fired.

Ranking Democratic member Rep. Lynn Woolsey (D-CA), however, expressed concern that the Republican continuing budget resolution (H.R. 1) would cripple the agency and its ability to function. On Monday, the DOL issued its 2012 budget request for $583 million and 2,387 full-time equivalent employees (FTE) for OSHA, an increase of $24,766,000 and 52 FTE over the FY 2010 enacted level. The request for OSHA includes increases of $6.4 million to improve regulatory standards; $7.7 million for Compliance Safety and Health Officers; and $6 million for additional whistleblower investigators. According to Woolsey, the continuing resolution Congress is currently examining instead calls for an 18% reduction of OSHA’s budget, which would eliminate 414 agency employees and result in 8,000 fewer workplace inspections. She also claimed that the continuing measure would cut OSHA standards by 16%. She concluded the hearing, however, by stating that “unless the goal is to under fund and undermine OSHA,” both parties would be able to work together to “bring OSHA into the 21st century.”

A list of the panelists and links to their written statements can be found here.

Photo credit: Alex Nikada

During the hearing, Jay Timmons, president and CEO of the National Association of Manufacturers (NAM), urged (pdf) agencies to “scrutinize the past two years of regulations and those currently under consideration to determine if they are consistent with a national mission of jobs and economic growth.” Timmons took particular issue with OSHA’s plans to propose amendments to its on-site consultation program “that would remove the ‘wall of separation’ between the consultation program and the enforcement staff.” Timmons added that: “OSHA’s actions here will only serve to discourage small businesses from participating in this successful program by making it more likely that a confidential consultation will turn into a surprise enforcement referral for something that does not present an imminent danger.”

Timmons also criticized OSHA’s anticipated proposal that would mandate a standard for employers’ safety and health programs. Timmons expressed concern that a required injury and illness program:

may not take into account the efforts by employers who already have effective safety and health programs in place or how this new mandate would disrupt safety programs that have achieved measurable successes. Based on preliminary information from OSHA, this proposal may allow OSHA investigators to substitute their judgment of the employer’s plan on how to achieve compliance and whether some “injury” in the workplace should have been addressed in some way, even if these conditions were regulated under a specific standard or did not amount to a “significant risk” as required under the OSH Act.

Echoing Timmons’ concern, witness Michael J. Fredrich, President of MCM Composites, LLC, testified (pdf) that OSHA’s proposed Injury and Illness Prevention Program “is nothing more than a ‘prove yourself innocent’ plan and it is a waste of time and money.”

Speaking on behalf of the National Federation of Independent Business (NFIB), business owner Jack Buschur testified (pdf) about the burdens imposed by project labor agreements (PLAs) and prevailing wage rules. With respect to PLAs, Buschur clamed:

The use of Project Labor Agreements is a discriminatory tactic that prevents non-union construction companies from working on government construction projects. The U.S. Department of Labor’s Bureau of Labor Statistics found in their annual report on union membership that from 2009 to 2010 union membership fell from 14.5 percent to 13.1 percent of the U.S. private construction work force. By preventing 86.9 percent of construction companies from bidding, PLAs increase the cost of construction by unfairly reducing the number of companies which can competitively bid. When you consider the fact that the construction industry currently has an unemployment rate of over 20 percent, it makes no sense to impose PLAs or other regulations that serve as impediments to job creation.

As for the prevailing wage rules, Buschur claimed that the requirements imposed by these regulations create an undue administrative burden on his business.

Karen Kerrigan, President and CEO of the Small Business & Entrepreneurship Council, testified (pdf) that the DOL’s “Plan/Prevent/Protect” regulatory initiative “will require businesses and other regulated entities to develop extensive, time-consuming plans and internal processes with their employees that will serve as a check for DOL on how and whether businesses are complying with the law.” In particular, Kerrigan took issue with the Wage and Hour Division’s planned regulation under the program that would require employers to provide workers with information on how their pay is calculated, how job classifications are developed, and whether and why they are classified as independent contractors. In addition, Kerrigan explained that under this proposal, employers would have to conduct training sessions regarding the differences in job classifications. According to Kerrigan, “for small businesses, the totality of the agency-wide Plan/Protect/Prevent program would be a significant burden – if not a nightmare.”

On the other hand, Sidney Shapiro, Member Scholar and Vice President of the Center for Progressive Reform, argued (pdf) that the focus on regulatory costs is misguide. Among other things, Shapiro claimed that:

• The cost of regulation in isolation “proves nothing because it ignores the benefits that regulation brings to the public and the economy. OMB recently estimated that over the last 10 years major federal regulations with quantified and monetized costs and benefits produced total of between $128 and $616 billion – a staggering return on the total $43-$55 billion costs of these investments.”
• Retrospective studies show that industry estimates of regulatory costs, submitted to agencies for purposes of rulemaking, are often too high.
• A recent study on regulatory costs issued by the SBA Office of Advocacy is unreliable.
• The costs of regulation generate economy activity, because the money is spent on goods and services, thereby generating jobs.

James Gattuso, a researcher with the Heritage Foundation, however, advocated (pdf) that Congress take the following steps to reduce the regulatory burden on businesses:

• Require congressional approval of major regulations that place new burdens on the private sector;
• Require a cost analysis of all legislation imposing new regulatory burdens; and
• Establish a sunset sate for new federal regulations.

Similarly, Jerry Ellig, an economist and research fellow at the Mercatus Center, made a number of recommendations in his testimony. (pdf)  Among other steps, Ellig suggested that:

Regulatory analysis needs to be encouraged, enforced, and required for all federal agencies. Agency economists should have the independence to conduct objective analysis. Agencies should publish regulatory analysis before writing proposed regulations and explain transparently how the analysis affected their decisions when they issue regulations.

A complete list of the panelists and links to their testimony can be found here.

This hearing follows other executive and legislative efforts to ensure that regulations do not pose an undue burden on the business community. Last month, President Obama issued an executive order and memoranda to federal agencies directing rulemakers to consider how regulations impact small businesses and economic development. In the same vein, the House of Representatives has begun debate on a resolution (H. Res. 72) that would require certain committees to inventory and review existing, pending, and proposed regulations and orders, “particularly with respect to their effect on jobs and economic growth.” In addition, the recently-introduced Regulatory Flexibility Improvements Act of 2011 (H.R. 527) would amend the Regulatory Flexibility Act to, among other things, require a more thorough analysis of regulations for their potential impact on small businesses. Whether and to what extent these measures are implemented remains to be seen.

Employee Benefits

The Internal Revenue Service has released guidance on the COBRA premium subsidy provided for in the stimulus package.  The Department of Labor (DOL) has likewise issued expanded guidance on the COBRA subsidy notice requirements.

Immigration

The U.S. Citizenship and Immigration Services (USCIS) announced that it will continue to accept applications for initial H-1B status more than a week after the filing season opened.

Workplace Safety

OSHA has released a guidance document on assigned protection factors for respirators.  The agency has also released a revised Field Operations Manual.
 

Until his appointment, Barab had been serving as a senior policy advisor to the House Education and Labor Committee, specializing in worker health and safety issues. Prior to working on this committee, Barab spent four years at the U.S. Chemical Safety and Hazard Investigation Board. From 1998 to 2001, Barab was appointed as a special assistant to the Assistant Secretary for OSHA. In this position he served, among other things, as national labor liaison and ergonomics coordinator. Before that, he spent 16 years directing the safety and health program for the American Federation of State, County and Municipal Employees (AFSCME).

Additionally, from March 2003 until January 2007, Barab ran  Confined Space, a blog devoted to “news and commentary on workplace health & safety, labor and politics.” Barab ceased writing for this blog when he began working for the House Education and Labor Committee.

In response to Barab’s appointment, Rep. George Miller (D-Calif.), Chairman of the House Education and Labor Committee, said in a statement:

I congratulate Jordan for being named as the acting head of OSHA. Jordan will bring a tremendous amount of valuable health and safety experience to an agency that has been neglected for far too long. Throughout his career, Jordan has demonstrated the specialized knowledge of health and safety issues needed to revamp the agency and strengthen its efforts to protect Americans while on the job. I look forward to working with Jordan and Secretary Solis to ensure that the agency works to protect the health and safety of our nation’s workers.

The rules would outline measures to minimize hazards associated with combustible dust through improved housekeeping, engineering controls, worker training and a written combustible dust safety program. These rules would be based on effective voluntary standards devised by the National Fire Protection Association. The rules would further provide requirements for building design and explosion protection.

A similar bill introduced last year (H.R. 5522) cleared the House by a vote of 247-165, but never made it out of the Senate Committee on Health, Education, Labor, and Pensions. The bill was introduced in response to the February 7, 2008 Imperial Sugar Refinery explosion in Port Wentworth, Georgia, that was caused by combustible sugar dust. The Congressional Budget Office had estimated that CDEFA would have increased OSHA’s enforcement workload by about five percent per year at a cost of approximately $10 million a year. If the current bill passes, it would likely have an impact on a broad spectrum of industries, the costs of which are unknown because there is likely a great variance from employer to employer how compliant they are with pre-existing standards and how up-to-date they are in the procedures and controls that are already in place.

Given the current makeup of the Senate and President Obama’s pledge to improve worker safety and strengthen OSHA enforcement, there is a greater chance this session that this bill could become law. At the moment, CDEFA has been referred to the House Committee on Education and Labor.