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Washington Update: OSHA at 41

July 1, 2011

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When OSHA turned 40 this past April, there was much talk within the safety community about what the agency had accomplished during the past four decades. The discussion mainly focused on the standards the agency has issued that have improved workplace safety. As OSHA enters its fifth decade, the discussion will now shift to what will come next.

What will happen

If everything stays more or less on schedule, several of the standards currently being pursued likely will be issued. The current administration already updated the cranes and derricks standard, and the crystalline silica standard appears closer than ever.

“We’ve been talking about issuing a new [silica] standard for as long as I can remember,” OSHA administrator David Michaels said May 18 at the American Industrial Hygiene Conference and Expo in Portland, OR. “We hope to get a proposal out in the next couple months.”

When Safety+Health magazine went to press, the Office of Management and Budget was reviewing a draft of the rule. And, in the span of five weeks, government officials – including those from OMB and the Department of Labor – had met five times with representatives from industry, labor and academia about it.

Two additional final rules are expected to be published later this year – revisions to OSHA’s standards on hazard communication and confined spaces in construction – according to the agency’s fall regulatory agenda. Many groups support an update to the hazcom standard, but the confined space rule received some opposition from the construction industry when first proposed in 2007.

Neither rule has been submitted to OMB, so it is doubtful they will meet the deadlines for final action by the end of this year. But I think they could be promulgated by the end of 2012, close to when President Barack Obama’s term expires.

What may happen

Two major initiatives face a steeper climb, but could be addressed at some point in the near future. OSHA took a step back on its final rule for adding a musculoskeletal disorder column to the OSHA 300 log, but did not pull the rule completely off the table (as industry representatives had hoped). Instead, the agency solicited comments from stakeholders as part of an effort to address concerns.

These talks could lead to the requirements changing or OSHA providing better guidance or definitions in the regulation. Or, the agency could drop it altogether to focus on other initiatives. Given Michaels’ comments on the importance of learning more about MSD injuries in the workplace (which account for nearly 30 percent of all injuries), I do not see him backing down from this rule. However, quite a few industry stakeholders view this recordkeeping rule as the first step toward a new ergonomics standard and will fight adamantly against it.

The other initiative is the injury and illness prevention program standard. It is Michaels’ No. 1 initiative and has broad support, especially from companies that already have a program.

This initiative has a good chance of becoming a standard eventually. The Voluntary Protection Programs, which receive support from both labor and industry groups, require employers to have an injury and illness prevention program, and several state-run programs require it as well. Therefore, it is only a matter of time before injury and illness prevention programs are required everywhere.

Although injury and illness prevention programs are not a new concept, they are new to the rulemaking process. Take a look at recently or soon-to-be promulgated standards and you will see a long history. A protracted rulemaking process is the way things work these days, sadly – and it is safe to say the same will hold true for an I2P2 standard.

What will not happen

On the top of a list of initiatives that probably will never happen is an ergonomics standard. An attempt at the end of the Clinton administration was overturned by Congress. Despite evidence that MSD injuries are a real problem, the causes are difficult to nail down. When a hand is amputated, it is easy to identify where it happened and what went wrong. But when someone pulls a back muscle, was it from lifting boxes at work or last weekend’s pickup basketball game? This uncertainty makes regulation difficult. In addition, industry opposition of any requirement concerning ergonomics is fierce.

Another major initiative is an update to the Occupational Safety and Health Act. Such an update requires an act of Congress, and what many Democratic leaders are seeking – a massive, singular update to the law – will not happen. The best recent chance was during the last Congress when Democrats controlled both chambers and the presidency, and they failed to update the law.

Michaels often mentions that an average of 12 worker deaths occur per day in this country. If those 12 deaths were all the result of one incident – the Deepwater Horizon explosion, for example – there would be public outcry to change occupational law to better protect workers, he has said.

But look at what has happened in the aftermath of recent disasters. Significant changes still have not been made to strengthen safety regulations on oil rigs, and Congress is debating the merits of updating mine safety laws following the 29 deaths at the Upper Big Branch Mine-South.

Tweaks may be made to the OSH Act. However, given the deep partisan divides in Congress these days, I fail to see how significant changes to the law will occur in a timely manner.

The opinions expressed in “Washington Update” do not necessarily reflect those of the National Safety Council or affiliated local Chapters.

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