Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
As 2019 comes to a close, the Occupational Safety and Health Administration (OSHA) remains active both on the regulatory and enforcement fronts, so employers must continue to be vigilant and proactive in their safety and health efforts. This Insight provides an overview of notable OSHA developments over the past year; for information on where the Agency is headed in 2020, please see Littler’s related article on OSHA’s regulatory agenda.
No Major Changes at the Top
OSHA’s Principal Deputy Assistant Secretary Loren Sweatt continues to serve as the political head of the Agency and likely will stay in that position throughout the remainder of the current administration. Scott Mugno, former FedEx Ground Vice President of Safety, Vehicle Maintenance & Sustainability, was nominated for the position of permanent Assistant Secretary. His confirmation vote was delayed, however, and he subsequently withdrew from consideration midway through 2019. No other nominee has been named. The withdrawal has paved the way for Ms. Sweatt to continue in the political leadership role that she has held since July 2017.
A Few New Rules
While the pace of regulatory activity at OSHA—at least in terms of the issuance of final rules—has slowed compared to that of the last two years of the Obama administration, 2019 has seen OSHA take a few significant steps on the regulatory front:
Final Rule Revising the “Improve Tracking of Workplace Injuries and Illnesses” Regulation
On January 25, 2019, OSHA published a final rule revising the “Improve Tracking of Workplace Injuries and Illnesses” regulation promulgated in 2016 under the prior administration. The original 2016 rule required employers with 250 or more employees to electronically file information from their OSHA Forms 300, 300A, and 301 with OSHA. The Agency stated at the time that it would make the data publicly available.
The January 2019 final rule rolled back some of these requirements. Employers are now only required to submit electronically the general summary data regarding recordable injuries and illnesses from Form 300A and are no longer responsible for submitting electronically information from their Forms 300 or 301. The new final rule reflects OSHA’s desire to protect worker privacy, with the Agency acknowledging that the collection of potentially sensitive personal health information, such as descriptions of employee injuries, birth dates of injured employees, and the location where such injuries took place contained in the Forms 300 or 301, would create a privacy risk. Specifically, OSHA determined that collection of such data could be publicly disclosed through Freedom of Information Act requests and that such risk outweighed the uncertain benefits of collecting the information. OSHA believed that the final rule would “maintain safety and health protections for workers while also reducing the burden to employers of complying with the current rule.” Additionally, under the current administration, OSHA has stated that it will not make the 300A data available to the public for at least four years.
The final rule, however, did not change the regulation’s original requirement that employers establish “reasonable” procedures for employees to report work-related injuries. Nor did the final rule alter the original language giving the Agency additional authority to redress alleged discrimination and retaliation against employees for reporting a work-related injury or illness through the citation and notification of penalty process, instead of through the congressionally authorized Occupational Safety and Health Act’s Section 11(c) anti-retaliation provision and process. Critics have voiced concerns regarding the vagueness of these provisions and their overall legality.
OSHA’s Standard Improvement Project IV Final Rule
On May 14, 2019, OSHA issued a final rule as part of its ongoing Standards Improvement Project (SIP). Consistent with the project’s rationale of reducing regulatory burdens while maintaining or enhancing worker safety and health, the updated regulations encompassed in the final rule generally simplified employer efforts both to comply with the Agency’s requirements as well as to determine how compliance can be achieved. For example, the rule replaces 31 pages of regulatory text on how to manage hazardous chemicals in the construction industry with a cross reference to an identical standard for general industry. Even with OSHA’s emphasis on regulatory simplification, however, there were several key requirements that employers should consider closely to ensure continued compliance with OSHA standards.
Hearing Loss Injury Reporting
The final rule modifies OSHA’s requirement for reporting work-related injuries with regard to determining and reporting work-related hearing loss. Under section 1904.10(b)(6) of OSHA’s regulations, employers have been excused from reporting an employee’s hearing loss as a work-related injury when a physician or other licensed health care professional has determined the hearing loss neither is work-related nor was significantly aggravated by occupational noise exposure. Until the recent final rule, however, the reporting requirement did not expressly set out any standards for how such medical professionals could go about ruling out work-relatedness. With this final rule, OSHA has now made explicit in section 1904.10(b)(6) that medical professionals must use OSHA’s rules in section 1904.5, general standards for determining the work-relatedness of an injury, in determining whether hearing loss is work-related.
911 Emergency Services
In this same final rule, OSHA also updated requirements related to availability of 911 emergency services found in 29 C.F.R. 1926.50(f). When OSHA first promulgated the provision in 1979, it simply required the posting of phone numbers for physicians, hospitals, and ambulances in areas where 911 services were unavailable. But, with 911 services now available almost everywhere across the United States, OSHA in the SIP IV rulemaking identified a different problem. When a caller dials 911 on a landline phone, it is customary for the 911 dispatcher to be provided the caller’s location automatically, which can greatly assist in pinpointing where medical services need to be sent. However, such location-services technology is not yet as ubiquitous on wireless phones. As a result, particularly in distant worksites that lack landline telephones, if a caller dials 911 on a wireless phone, neither the caller nor the phone being used might be able to tell the dispatcher where exactly the call is coming from.
Under OSHA’s update to section 1926.50(f), employers in worksites that have 911 services available, but lack readily available landline telephones, must post in a conspicuous location either the worksite’s latitude and longitude, or alternatively, other location-identification information that communicates effectively to employees the worksite’s location. In light of this revision, employers that field employees in out-of-the way worksites should ensure they provide those employees, whether on a bulletin board or another widely trafficked part of the worksite, information on precisely where their site is located.
Easing Regulatory Burdens
Finally, it is worth noting that several parts of the new rule increase employer flexibility or otherwise generally reduce regulatory burdens. One such instance concerns OSHA’s standards involving employers providing chest X-rays to employees. Not only has OSHA eliminated the requirements for periodic chest X-rays associated with employee exposure to certain chemicals (due to there being no discernable benefit in reducing either lung cancer risk or mortality), but it has also allowed employers the flexibility to choose digital rather than analog chest X-rays, as well as greater flexibility in the size of X-ray films, regarding exposure to a larger subset of chemicals.
Another example concerns lifelines used standalone as well as with safety belts and lanyards, which previously had to supply a minimum of 5,400 pounds in breaking strength. With improvements in testing methodology, lifelines now only have to supply at least 5,000 pounds of breaking strength.
With respect to enforcement, OSHA recently launched a program aimed at combating high injury and illness rates—the “Site-Specific Targeting Program” or “SST.” It is now OSHA’s primary site-specific, programmed inspection initiative. Implemented across national, regional, and area OSHA offices, the SST program uses injury and illness Form 300A data electronically submitted by employers with 20 or more employees to identify workplaces for inspection. Previously, OSHA had used injury and illness information collected under the OSHA Data Initiative. The SST program applies to both manufacturing and non-manufacturing sectors, but excludes construction worksites. It is not intended to include office-only work environments. Employers that are approved participants in the Pre-Safety and Health Achievement Recognition Program may be granted a deferral from OSHA programmed inspections, including SST.
OSHA’s SST program directs enforcement resources to workplaces with the highest rates of injuries and illnesses, but inspections will not be limited to worksites with the highest rates of these issues. Under the SST program, OSHA will also randomly inspect worksites that did not provide the required Form 300A data—an effort to discourage employers from failing to report. Further, OSHA will inspect a random sample of “low-rate establishments” for quality control purposes. Therefore, employers with low rates reported on their Forms 300A are not necessarily excluded from possible SST inspection.
When a worksite is identified for inspection under the SST, the Office of Statistical Analysis provides OSHA Area Offices with access to the “Inspection List.” Only OSHA and State Plan States can access this data. Area Offices are required to inspect all establishments on the SST Inspection List unless the Regional Administrator specifically authorizes otherwise.
SST inspections are required by OSHA to be comprehensive in scope. An SST inspection can be opened as either a comprehensive safety or health inspection, based on the Area Office’s knowledge of the workplace characteristics. But, if the site has been inspected previously, an Area Director may expand the inspection to cover both health and safety hazards based on that prior inspection history. The Area Director is required to document the rationale for any expanded inspection.
In addition to the SST, OSHA continues to utilize inspection programs targeting hazards and industries identified as “high risk” such as lead, ship-breaking, trenching/excavations, process safety management, hazardous machinery, hexavalent chromium, primary metal industries, and combustible dust. OSHA also has approximately 100 regional or local programs addressing areas of emphasis identified by OSHA.
Employers should continue to assess their own safety and health programs and ensure they are fully up-to-speed on these and other OSHA activities.