‘More work to be done’

S+H: The Obama administration’s proposed budget for OSHA in fiscal year 2014 would give whistleblower protection a boost of nearly $6 million, but other priorities – including state programs, enforcement and federal compliance assistance – would see a drop in funding. This could lead to fewer inspections being conducted and fewer new employers entering the Voluntary Protection Programs. Why was this decision made?

Michaels: OSHA requested an increase in Whistleblower Protection for the improved administration of 22 whistleblower statutes, including Section 11(c) of the OSH Act, and recently enacted statutes covering food safety, finance reform and health care reform. OSHA is also seeking additional resources to address persistent backlogs and heavy and increasing caseloads for its whistleblower investigators. Increased resources are critical, since many whistleblower provisions, including those related to food safety, health care reform, finance reform, airlines and railroad safety – all of which have the potential for a large volume of complaints – have shorter deadlines for response than the 90-day deadline governing section 11(c) complaints. In July 2012, OSHA took on its 22nd whistleblower provision under the Moving Ahead for Progress in the 21st Century Act.

The FY 2014 President’s Budget added resources to priorities for the agency and otherwise made slight reductions in line with the fiscal restraint implemented throughout the federal government. As reflected in the agency’s planned work, OSHA will continue to add new participants to the Voluntary Protection Programs, but the growth will be slowed to focus on the integrity and modernization of cooperative programs.

S+H: You have touted Injury and Illness Prevention Programs as your No. 1 priority. How is the development of the rule going? What requirements might it include, and when could stakeholders expect to see the proposed rule released?

Michaels: OSHA’s Injury and Illness Prevention Program rulemaking is in its early stages. We have conducted five stakeholder meetings across the country. The next step is for us to gather comments from small businesses during the Small Business Regulatory Enforcement Fairness Act process. The agency plans to initiate this process soon. The SBREFA process will be followed by the publication of a proposed rule, a notice and comment period, and public hearings. The latest Unified Regulatory Agenda, published in December 2012, indicates that we anticipate publishing a proposed rule in December 2013. (Editor’s note: OSHA released its Spring Regulatory Agenda on July 3 – after this interview was conducted. The agenda states that a proposed rule on I2P2 is expected in January 2014.)

OSHA has learned much from the variety of approaches taken by 15 states – including California, Hawaii, Minnesota, Montana, Oregon and Washington – that have required such programs of some or all of their employers. In addition, Injury and Illness Prevention Programs have long been required of OSHA’s Voluntary Protection Programs participants. OSHA will base its proposal on the real-world experience of these employers and others, as well as the substantial data on reductions in injuries and illnesses from employers who have implemented similar programs.

Although OSHA has not yet released any draft regulatory text, the standard will most probably outline the general elements of a program and allow employers to determine the actual content depending on the specific hazards and character of their business.

Our plan right now is to get small employer input from a lot of different sectors and then have a proposal out by the end of the year, as stated in the current Regulatory Agenda.

S+H: The business community has shown some resistance to an I2P2 rule, but many top-performing employers have such a program. What are some potential reasons for this resistance?

Michaels: Many workplaces have adopted Injury and Illness Prevention Program approaches, either on their own or as part of OSHA’s Voluntary Protection Program and Safety and Health Achievement Recognition Program. OSHA’s experience with these cooperative programs indicates that employers experience dramatic decreases in workplace injuries, and many of them report a transformed workplace culture that can lead to higher productivity and quality, reduced employee turnover, reduced costs, and greater employee satisfaction.

The agency believes that some resistance may stem from the regulated community not knowing exactly what OSHA plans to propose for an Injury and Illness Prevention Program Standard and how the agency plans to enforce such a rule. Some stakeholders have expressed concern that an Injury and Illness Prevention Program Standard would allow OSHA to cite any hazard, even if it’s not covered by an existing OSHA standard. OSHA’s General Duty Clause (Section 5(a)(1)) already covers recognized hazards for which OSHA does not have standards. Since its creation over 40 years ago, OSHA has cited employers under the General Duty Clause when workers are exposed to serious recognized hazards that have a feasible means of abatement. An Injury and Illness Prevention Program Standard would not change that in any way. It is intended to help employers develop a systematic plan to find and fix workplace hazards that are currently covered under OSHA standards or that are currently covered under the General Duty Clause.

Additionally, stakeholders have expressed concern that, with an Injury and Illness Prevention Program Standard in place, a violation of an existing OSHA standard would also be cited as a violation of the Injury and Illness Prevention Program Standard. That, however, would not be the case. A citation for violating an existing OSHA standard or for violating the General Duty Clause does not mean that an employer would also be cited for violating the Injury and Illness Prevention Program Standard.

Stakeholders have also raised concerns about existing programs that they may have in place and how a new Injury and Illness Prevention Program Standard would impact them. OSHA is aware that many small and large businesses already have effective Injury and Illness Prevention Programs. Our primary goal is to reach those employers that do not have an effective program. It is not the agency’s intention to require those employers who have previously implemented effective programs that share the basic elements of OSHA’s standard to make unnecessary changes. We plan to issue a proposal that is sufficiently flexible to allow those programs to continue uninterrupted.

S+H: If you remain OSHA administrator for the rest of President Obama’s final term, you will become the longest-serving OSHA chief in the agency’s history. What do you hope to accomplish by the time you leave?

Michaels: One of my main objectives is to educate our country’s employers about moving beyond reactive compliance to embrace a culture of safety. Many workplaces already have Injury and Illness Prevention Programs, where employers implement a process to find and fix workplace hazards before workers are hurt.

Our Injury and Illness Prevention Program initiative remains my No. 1 priority – for these programs are critical to driving down injury, illness and fatality rates. In our inspections, consultations and compliance assistance efforts, we should be encouraging every employer to adopt an Injury and Illness Prevention Program.

We must also continue to address the problem of those systems that undermine a workplace culture of safety. For example, some incentive programs based on injury and illness reports or rates can discourage injured workers from reporting injuries. We’ve seen employers, for example, offer prizes or enter workers into a raffle if they meet a goal of not incurring reportable injuries over a certain period of time. Programs like these ultimately discourage workers from reporting injuries because they do not want to be perceived as having ruined it for everyone else.

We’ve also seen programs that actually punish workers for reporting injuries, by disciplining workers, no matter what the circumstances surrounding the injury or invoking otherwise ignored safety rules. These programs can put workers at risk, and may also constitute unlawful retaliation or result in violations of OSHA’s recordkeeping regulations.

We will continue to encourage employers to use their recordkeeping systems as a way to identify and fix workplace hazards, and we hope to make such efforts even more effective by modernizing recordkeeping practices. One of the items on our Regulatory Agenda is a proposal on a new way to think about tracking injuries and illnesses, moving recordkeeping into the digital age.