By Epstein Becker & Green’s OSHA Practice Group

OSHA during the first term of the Obama Administration featured a heavy focus on enforcement, at the expense of compliance assistance, and despite a lot of talk, also at the expense of any meaningful new rulemaking activities.  There are signs now, however, that OSHA may be renewing a push for a more active rulemaking calendar during the Administration’s second term.

The first sign has been a series of speeches and public statements by OSHA’s Administrator, Dr. David Michaels, in which he has characterized the development of a proposed Injury and Illness Prevention Program (I2P2) rule as his and the Agency’s “highest priority.”  The I2P2 rule is being designed to compel employers to “find and fix” hazards, and would have significant implications for employers across all industries.  During a presentation at a safety conference in June, Michaels explained that “I2P2 would require employers to have an ongoing, investigative, preventative process in place instead of being reactive and addressing problems after an accident occurs.”  OSHA’s leadership characterizing the I2P2 rule is a top priority is not new, but now that we are passed the 2012 Presidential Election, actual movement on the proposed rule is realistic.

Second, we are hearing that the Department of Labor’s Spring Regulatory Agenda is expected to return several OSHA rulemaking initiatives, including the I2P2 rule, from the backburner, where they were deposited prior to the 2012 Presidential Election, back to the active rulemaking calendar.  For the moment, we are left only to guess about that active rulemaking calendar because the Department of Labor is once again significantly overdue, already by two months, publishing the Regulatory Agenda.  Congressional Republicans have criticized the Agency’s lack of transparency resulting from the delay, claiming the Administration is playing a game of regulatory hide-and-seek.

Finally, although OSHA has not made an official announcement yet, sources report that OSHA will soon promote Dorothy Dougherty, current Director of OSHA’s Directorate of Standards and Guidance, as its new Deputy Assistant Secretary, the most senior career position within OSHA.  Ms. Dougherty will replace former Deputy Assistant Secretary Richard Fairfax, who retired in early May of 2013.  This move is significant because, as her most recent title indicates, Ms. Dougherty’s long career at OSHA has included a heavy focus on the development of workplace standards, regulations, and guidance, and therefore may be another sign that OSHA plans to prioritize rulemaking over the balance of the Obama Administration’s time in office.

Ms. Dougherty began her career with OSHA in 1992 as Chief of the Compliance and Technical Guidance Division (another non-enforcement role) for the Office of the Federal Agency Programs.  Since that time, Ms. Dougherty has assumed several other leadership positions within the Agency, many of which focused on rulemaking and compliance assistance.  She has served nearly seven years in her current position as Director for the Directorate of Standards and Guidance.  Ms. Dougherty is well-liked within the Agency and has received high praise from current and former peers for her managerial skills and ability to work collaboratively with others, including appointed officials from both sides of the aisle.
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By Elizabeth Bradley, Kara M. Maciel & Adam Solander

In breaking news, the Obama Administration has acknowledged the significant regulatory burdens that the Affordable Care Act’s January 1, 2014 deadline would place on employers.  Specifically, the Administration announced that in view of the complexity of the rules and reporting requirements, it is  postponing

By Eric J. Conn, Head of the OSHA Practice Group

Pursuant to the Regulatory Flexibility Act, the federal government and its agencies, such as OSHA, are required to give notice of significant rulemaking and other regulatory activity by publishing “semi-annual” regulatory agendas that outline the status of on-going and intended federal regulations and standards.  Someone needs to tell the Administration that “semi-annual” means twice yearly, not every other year.

Historically, the Office of Information and Regulatory Affairs (OIRA) issues a Spring regulatory agenda sometime during the summer, and a Fall regulatory agenda sometime in the winter.  Before last week (the final week of 2012), however, there had been no regulatory agenda published for 2012.  The only regulatory agenda published during 2012, was for Fall 2011.

Congressional Republicans had been hounding the Administration for a regulatory agenda since well before the Election, believing the long delay was because the President feared bad press and negative public reaction to the Administration’s continued aggressive regulatory plans.

Senator Rob Portman (R-Ohio) sent a letter to the President in late August calling for an Spring Reg Agenda, and Congressman John Kline (R-MN), Chairman of the U.S. House Committee on Education and the Workforce, followed up with a November 1, 2012 press release stating:

“The Obama administration continues to play a game of regulatory hide-and-seek with the American people. Current law was designed to protect the public’s right to know about rules and regulations being crafted behind the closed doors of the federal bureaucracy. However, on a range of issues including health care, retirement security, and workplace safety the president seems determined to keep his plans for new regulations secret.”

The wait is finally over, as the Fall 2012 Regulatory Agenda was released last week (Friday, December 21, 2012) — just in time for 2013.  Here are the OSHA-related highlights.  OSHA projects that during 2013, final agency action will be taken on 10 regulations, including the following:

1. A new Confined Spaces in Construction standard (by July 2013)

  • For more than a decade, OSHA has been developing a counter-part to the general industry confined space standard (29 CFR 1910.146).
  • The Final Rule for the construction industry is expected this summer.

2. An updated Electric Power Transmission and Distribution standard (by March 2013)

  • Based on a high incident rate among electric line workers, forty years ago, OSHA developed a standard to address safety during the construction of electric power transmission and distribution lines.  Early in 2013, OSHA expects to implement a series of revisions to this standard intended to address non-construction work performed during maintenance on electric power installations, and to update PPE and Fall Protection requirements for work on power generation, transmission, and distribution installations.
  • The final rule is expected early this year.

3. Gutting Cooperative Programs (by April 2013)

  • OSHA has proposed to amend its cooperative Safety and Health Achievement Recognition Program (SHARP) to eliminate most of the exemptions from enforcement inspections historically available to facilities that have qualified for the program.
  • This change could effectively eliminate most of the incentives for employers to participate in this recognition program, which OSHA has historically administered to incentivize and support small employers to develop, implement, and continuously improve effective safety and health programs.

4. An updated Walking Working Surfaces standard; i.e., Fall Protection (by August 2013)

  • OSHA started the process to update its 1990 Fall Protection standard (to reflect advances in technology and strategies for guarding against slips, trips and falls) more than a decade ago.
  • The final rule is expected this summer.
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Happy Holidays and Happy New Year to all of you, and Happy 1st Anniversary to the OSHA Law Update blog.  On December 20th, we celebrated our first full year of updates and articles (56 of them) about important OSHA Law topics here on the OSHA Law Update blog.  We would hardly have the energy or enthusiasm to keep the OSHA Law Update current if it were not for all of the incredibly positive feedback, comments, and questions that we have received over the year from all of you.  Thank you for that.

Just as we did last year, as the clock was winding down on a remarkable year of OSHA enforcement and other activity, it is time to take a look ahead to the new year, and offer our thoughts about what we can all expect from OSHA in 2013.  Here is a link to our post from December 2011 in which forecasted 5 important OSHA developments for 2012 (a pretty accurate forecast in retrospect), and here are three developments we expect from OSHA in 2013:

1.  Heavy-handed enforcement will continue to trend up:

During President Obama’s first term in office, OSHA consistently increased enforcement in every measureable way, year over year, and there is every reason to believe that trend will continue.  OSHA’s budget increased early in President Obama’s first team, and that allowed OSHA to hire more than 100 new compliance officers.  The agency also redirected most of the resources and personnel who had formerly been involved in compliance assistance and cooperative programs into enforcement.  As a result of this big increase in enforcement personnel, we saw the number of inspections increase from averages in the mid-30,000’s during the Bush Administration to the mid-40,000’s through President Obama’s first term.  Barring a prolonged trip over the Fiscal Cliff and actual implementation of sequestration, the trend of increasing enforcement personnel and increasing inspections will continue.

In addition to more frequent visits from OSHA, the OSHA leadership team also modified its Field Operations Manual for the purpose of driving up average and total penalties per inspection (i.e., by raising minimum penalties, average penalties, and eliminating penalty reductions available for size and safe history).  As a result, the average per Serious violation penalty doubled from the Bush Administration (approx. $1,000 per violation) to the end of Obama’s first term (approx. $2,000 per violation).  OSHA’s leadership team has expressed a goal of continuing to grow that average to approx. $3,000 per Serious violation.  We also watched the frequency of enhanced citations (i.e., Willful and Repeat violations that carry 10x higher penalties) increase at a rate of more than 200%.  Those changes, and other aggressive enforcement strategies by OSHA, have resulted in the Agency doubling the total number of “Significant” enforcement actions (cases involving penalties of $100,000 or more), and tripling the number of cases involving total penalties over $1M.  That trend is also expected to continue.

The Democratic Party unveiled its Party Platform during President Obama’s Nominating Convention, and offered a glimpse into what we can expect from OSHA in 2013 and beyond.

The platform called for a focus on “continu[ing] to adopt and enforce comprehensive safety standards.”  Many dubbed the 2012 a “status quo election,” which is probably right, and because the status quo at OSHA over the past four years has been a trend of increasing enforcement and focused rulemaking, that is precisely what we should expect from OSHA over the next four years.

Specifically, OSHA will continue to aggressively enforce its existing standards (i.e., increasing numbers of inspections, increasing penalties, and increasing publicity related to enforcement actions).  We anticipate a doubling down on programs and strategies like:

By Alexis M. Downs

OSHA recently increased the amount of information that is publically available on OSHA’s website regarding “variances.”  Variances are alternative methods for addressing a safety hazard that do not technically comply with OSHA standards.  OSHA has allowed employers to formally apply for variances for more than 30 years, yet there are currently

By Eric Conn, Head of the OSHA Practice Group

We recently had an article published by the Washington Legal Foundation entitled “OSHA Continues Trend of Informally Imposing New Rules.”  The article expanded on an earlier post here on the OSHA Law Update Blog regarding OSHA’s attempts to circumvent Formal Notice and Comment

By Eric J. Conn, Head of the OSHA Practice Group

The deadline passed last week for OSHA to appeal a recent decision by an Administrative Law Judge (“ALJ”) that struck down OSHA’s attempt to expand its Personal Protective Equipment (“PPE”) standard by way of an enforcement memorandum that mandated oil and gas employers ensure their employees don flame retardant clothing (“FRC”) during drilling operations (OSHA’s “FRC Memo”).  The Judge ruled that the FRC Memo constituted “improper rulemaking under the aegis of an enforcement standard.” See Sec’y of Labor v. Petro Hunt LLC, OSHRCJ, No. 11-0873 (June 2, 2012).  The Occupational Safety and Health Review Commission (“Review Commission”) also declined to independently take-up the decision for review, so the ALJ’s decision is now officially a Final Order of the Review Commission.

The ALJ’s decision represents a meaningful victory for employers as it relates to any PPE enforcement action, not just those related to FRC. The ALJ chastised OSHA for attempting to circumvent the formal notice and comment rulemaking process required by the Administrative Procedure Act (“APA”), by issuing the FRC Memo rather than amending its regulations. Although OSHA did not appeal the Judge’s ruling, the Agency has expressed, through both words and actions, disagreement with the Judge’s ruling.

The Petro Hunt case arose out of an October 15, 2010 OSHA inspection at an oil production worksite in North Dakota, after the Sherriff’s Department notified the Agency that a fire engulfed a treater shed. Following the inspection, OSHA cited the employer for allegedly failing to provide and require employees to wear FRC. The employer contested the citation, and a hearing was held before ALJ Patrick Augustine in November 2011. In this case of first impression, the ALJ concluded that the FRC Memo did not simply interpret the standard but, rather, amounted to a new standard that should have been subject to the formal rulemaking process under the APA.

Judge Augustine reasoned that the FRC Memo transformed the PPE standard from a “performance-based” standard – which grants employers reasonable discretion to assess the nature of hazards at their workplaces and select appropriate PPE to address those hazards – into a specification standard – in this case, an obligation to provide a specific form of PPE (flame retardant clothing), during oil and gas operations “regardless of the particular circumstances that may be present at any individual facility.” In striking down the FRC Memo, the Judge stated:

Complainant cannot ‘require’ anything more than what is authorized by the regulations. If [the Secretary of Labor] wishes to specifically require that FRC be worn in all instances at oil and gas operations, then she must report to the required notice and comment rulemaking process. Otherwise, [OSHA] must independently prove in each case that Respondent had actual notice, or that a reasonable person in Respondent’s position would have recognized a hazard requiring the use of FRC.

The ALJ also rejected OSHA’s argument that the Review Commission should grant deference to OSHA’s interpretation in the FRC Memo, because, Judge Augustine explained, the interpretation was “unreasonable and inconsistent” with established regulations. The ALJ proceeded to vacate the citation, reasoning that OSHA failed to establish that the employer had actual notice of a need for FRC at the inspected worksite, or that a reasonable person familiar with the circumstances and industry would have recognized the existence of a flash fire hazard. To support his decision, the ALJ highlighted the following facts:

  1. OSHA’s failure to establish that flash fires were a hazard at the worksite;
  2. None of the employer’s employees suffered injuries due to fires in the previous two years; and
  3. The employer conducted a thorough hazard assessment, and reasonably concluded that engineering and administrative controls (methods of addressing hazards generally preferred over reliance on PPE), adequately addressed any potential fire hazard.
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by Allen B. Roberts and Michael J. Slocum

Under a final rule (“Final Rule”) issued by the Occupational Safety and Health Administration (“OSHA”), commercial motor carriers that own or lease a vehicle in a business affecting interstate commerce or assign employees to operate such a vehicle are impacted by Surface Transportation Assistance Act of 1982

By Eric J. Conn

In what seems to be a trend, OSHA has again delayed its rulemaking process for an Injury and Illness Prevention Program (commonly known as I2P2) standard. The announcement came during a National Advisory Committee on Occupational Safety and Health meeting in late June.  According to OSHA officials, we should not expect

Last week, EHS Today Magazine ran our article in which we delve into more detail about OSHA’s amended Hazard Communication Rule (“HazCom”), and the integration of the United Nations’ Globally Harmonized System of Classification and Labeling of Chemicals (“GHS”).  Check out the full article here, in which we detailed 10 important things employers need