On Safety: OSHA’s current regulatory agenda

Fifteen potential standards are in the proposed rule stage. Realistically, though, I can see OSHA moving forward with only the following eight:

• Standard on infectious diseases – Employees in health care and other high-risk environments face long-standing infectious disease hazards such as tuberculosis, varicella disease (chickenpox, shingles) and measles, as well as new and emerging infectious disease threats such as severe acute respiratory syndrome, COVID-19 and pandemic influenza. Health care workers and workers in related occupations, or those who are exposed in other high-risk environments, are at increased risk of contracting TB, SARS, MRSA, COVID-19 and other infectious diseases.
• An update of the hazard communication (global harmonization) standard – OSHA and other U.S. agencies have been involved in a long-term project to negotiate a globally harmonized approach to classifying chemical hazards and providing labels and Safety Data Sheets for hazardous chemicals. The result is the Globally Harmonized System of Classification and Labeling of Chemicals. GHS was adopted by the United Nations, with an international goal of as many countries as possible adopting it by 2008. OSHA incorporated GHS into the standard on hazard communication in March 2012 to specify requirements for hazard classification and to standardize label components and information on SDSs. However, GHS is a living document and has been updated several times since OSHA’s rulemaking. Although OSHA’s 2012 standard on hazard communication was based on the third edition of GHS, the agency’s current rulemaking is intended to harmonize the standard to the seventh edition of GHS, improve harmonization with international trading partners such as Canada and codify a number of enforcement policies that have been issued since the 2012 standard.
• Standard on lockout/tagout (1910.147) – Recent technological advancements that employ computer-based controls of hazardous energy (e.g., mechanical, electrical, pneumatic, chemical and radiation) conflict with OSHA’s existing lockout/tagout standard. The use of these computer-based controls has become more common as equipment manufacturers modernize their designs. Additionally, national consensus standards and international standards harmonization exist that govern the design and use of computer-based controls. This approach of controlling hazardous energy is more accepted in other nations, which raises issues of needing to harmonize U.S. standards with those of other countries. The agency has recently seen an increase in requests for variances for these devices. OSHA issued an RFI in May 2019 to understand the strengths and limitations of this new technology as well as potential hazards to workers.
• Standard on tree care – OSHA doesn’t have a standard for tree care operations. Instead, the agency applies a patchwork of standards to address the serious hazards in this industry. The tree care industry previously petitioned the agency for rulemaking, and OSHA issued an ANPRM (September 2008). OSHA completed a Small Business Regulatory Enforcement Fairness Act panel in May 2020, collecting information from affected small entities on a potential standard, including the scope of the standard, effective work practices and arboricultural-specific uses of equipment to guide the agency in developing a rule that would best address industry safety and health concerns. Tree care continues to be a high-hazard industry.
• Standard on powered industrial trucks – OSHA is proposing to update its reference to the ANSI B56.1-1969 Safety Standard for Powered Industrial Trucks found in its PITs standards to include the latest version of ANSI/ITSDF B56.1a-2018 Safety Standard for Low Lift and High Lift Trucks. This rulemaking will incorporate by reference the consensus standard provisions related to the design and construction of PITs and is a continuation of OSHA’s ongoing effort to update references to consensus standards published by standards-developing organizations. The purpose of these rulemakings is to improve worker safety and health by ensuring consensus standards referenced in OSHA rules address current industry practice and state-of-the-art technology. In a separate action (RIN 1218-AC99), OSHA is collecting information to evaluate the need to update requirements related to the maintenance and use of PITs and training of operators.
• Tracking workplace illnesses and injuries regulation – OSHA intends to issue a proposal to restore provisions of the Improve Tracking of Workplace Injuries and Illnesses final rule, 81 FR 29624 (May 12, 2016), that were removed by the Tracking of Workplace Injuries and Illnesses final rule, 84 FR 380 (Jan. 25, 2019). OSHA proposes to amend its recordkeeping regulation to restore the requirement to electronically submit to OSHA information from Form 300 (a log of work-related injuries and illnesses) and Form 301 (an injury and illness incident report) for establishments that meet certain size and industry criteria. Under the current regulation, these establishments are required to electronically submit information from only Form 300A (a summary of work-related injuries and illnesses).
• The Massachusetts Department of Labor is working toward submitting a developmental State Plan for occupational safety and health, applicable only to state and local government employment, for determination of initial approval under Section 18(e) of the Occupational Safety and Health Act of 1970. OSHA will be publishing a notice of proposed rulemaking, soliciting written comments on whether initial State Plan approval should be granted and offering an opportunity to interested stakeholders to request an informal public hearing on the question of initial State Plan approval.
• Revocation of the Arizona State Plan status – Arizona administers a State Plan approved by federal OSHA under Section 18(e) of the OSH Act. The State Plan received final approval from OSHA on June 20, 1985. Arizona has failed to maintain its commitment to provide a program for employee safety and health protection that meets the requirements of Section 18(c) and is at least as effective as the federal OSHA program in protecting employees at covered workplaces, among other things, by failing its obligations with respect to OSHA’s ETS on COVID-19 for health care in a timely manner. Therefore, OSHA is considering whether to propose to revoke its affirmative determination under Section 18(e) granting final approval to the State Plan. If OSHA determines that such revocation is appropriate, the Arizona State Plan will revert to initial approval and federal authority for discretionary concurrent enforcement would resume, allowing federal OSHA to ensure private-sector employees in Arizona are receiving protections that are at least as effective as those afforded to employees covered by federal OSHA. (Note: With OSHA’s recent partial withdrawal of the ETS on COVID-19 for health care, this revocation of the Arizona State Plan state may now be a moot point.)

In the pre-rule stage, several potential standards are of interest:

• Standard on process safety management – OSHA issued an RFI on Dec. 9, 2013 (78 FR 73756). The RFI identified issues related to modernization of the PSM standard (1910.119) and related standards necessary to meet the goal of preventing major chemical incidents. OSHA completed a SBREFA panel in August 2016. Although a date hasn’t yet been scheduled, OSHA hopes to conduct a stakeholder meeting this year.
• Mechanical power presses
• Standard on workplace violence in health care and social services – An RFI published Dec. 7, 2016 (81 FR 88147), provides OSHA’s history with the issue of workplace violence in health care and social assistance, including a discussion of the guidelines that were initially published in 1996, a 2014 update to the guidelines and the agency’s use of the General Duty Clause in enforcement cases in health care. The RFI solicited information primarily from health care employers, workers and other subject matter experts on the impacts of violence, prevention strategies and other information that will be useful to the agency. OSHA was petitioned by a broad coalition of labor unions for a standard to prevent workplace violence in health care settings, and in a separate petition by the National Nurses United. On Jan. 10, 2017, OSHA granted the petitions. The agency is preparing a SBREFA panel.
• Heat illness and prevention (indoors and outdoors) – Heat is the leading weather-related killer, and it’s becoming more dangerous, as 18 of the past 19 years were the hottest on record. Excessive heat can cause heat stroke and even death if not treated properly. It also exacerbates existing health problems such as asthma, kidney failure and heart disease. Workers in agriculture and construction are at highest risk, but the problem affects all workers exposed to heat, including indoor workers without climate-controlled environments. Essential jobs in which employees are exposed to high levels of heat are disproportionately held by racial minorities.
  • Heat stress killed 815 U.S. workers and seriously injured more than 70,000 workers from 1992 through 2017, according to the Bureau of Labor Statistics. However, this is likely a vast underestimate, given that injuries and illnesses are underreported in the United States, especially in the sectors employing vulnerable and often undocumented workers. Further, heat isn’t always recognized as a cause of heat-induced injuries or deaths and can easily be misclassified because many of the symptoms overlap with other more common diagnoses.
  • OSHA was petitioned by Public Citizen in 2011 to develop a standard on heat stress. The agency denied the petition in 2012, but was again petitioned by the watchdog group, on behalf of about 130 organizations, in 2018 and 2019. Last year, Public Citizen once again petitioned OSHA, which is still considering the petitions and has neither granted nor denied them to date. In 2019 and 2021, some members of the Senate urged OSHA to initiate rulemaking to address heat stress.
  • Given the potentially broad scope of regulatory efforts to protect workers from heat hazards, as well as a number of technical issues and considerations with regulating this hazard (e.g., heat stress thresholds, heat acclimatization planning, exposure monitoring, medical monitoring), an RFI would allow the agency to begin a dialogue and engage with stakeholders to explore the potential for rulemaking on this topic.

Of all the regulations on OSHA’s most recent regulatory agenda, the key ones I think the agency will be focusing on are infectious diseases; workplace violence; hazard communication – global harmonization; heat stress; and the ETS on COVID-19 vaccination, testing and masking rulemaking. Despite being in desperate need of updating, I don’t think updates for the lockout/tagout standard or the PSM standard will see much movement.