OSHA: I2P2 rule tabled, infectious reg remains
Agency enforcement very active
Political reality has put the brakes on a broad injury prevention rule favored by the Occupational Safety and Health Administration. But enforcement remains a priority for the agency, and health care employers can still expect increased scrutiny, safety experts say.
OSHA Administrator David Michaels, PhD, MPH, has repeatedly said his "top priority" was to implement an injury and illness prevention program (I2P2) rule, which would require employers to look for hazards and take steps to prevent injuries.
But this spring, the agency bumped I2P2 to "long-term action" on its regulatory agency, which means it is likely dead for the remainder of the Obama administration.
The long-term action category is "essentially a place holder for rules that they’re not going to work on," says Kate McMahon, JD, a partner with the OSHA practice group of the Epstein, Becker and Green law firm in Washington, DC. "They’re not even on OSHA’s slow track, which is pretty slow."
OSHA previously had stated that it would issue a notice of proposed rulemaking on I2P2 in September 2014. But a variety of employers and industry groups vigorously opposed the concept, fearing OSHA would use the rule as a blank check to issue citations related to virtually any hazard.
With the fall elections approaching, hot-button issues become risky. "Right now, the White House has essentially told all of the agencies, Don’t do anything controversial,’" says Aaron Trippler, director of government affairs for the American Industrial Hygiene Association.
An OSHA spokesperson told HEH that after stakeholder meetings, "the agency determined that the process would benefit from having additional regulatory framework options for consideration." OSHA is continuing with updated guidance documents on injury and illness prevention programs, she said.
Take an I2P2 approach
I2P2 was actually an opportunity to change the way occupational safety and health is regulated, says Dave Heidorn, JD, manager of government affairs and policy for the American Society of Safety Engineers (ASSE) in Washington, DC.
Instead of prescriptive rules that are difficult to update as hazards and technologies change, I2P2 would allow employers flexibility to address their hazards, he says.
With Michaels, "we’ve had this great opportunity for a champion to change the paradigm of how we look at occupational health and safety regulation," says Heidorn. "We continue to hope that isn’t lost."
In fact, attorneys specializing in occupational safety and health advise their clients to adopt an injury and illness prevention program, in which they assess the workplace, reduce risks and document their progress.
"Clearly every employer, regardless of the industry they’re in, should be assessing their workplace for hazards," says Tressi Cordaro, JD, with Jackson Lewis in Washington, DC.
New programs and equipment should be accompanied by hazard evaluation, and employers should conduct regular safety audits, she says.
Audits conducted under the supervision of an attorney would be covered by the attorney-client privilege and would not need to be provided to OSHA during an inspection, says Eric Conn, JD, chair of the OSHA Practice Group at Epstein Becker Green.
Meanwhile, OSHA says it intends to move forward with two other rules that would impact health care employers: Infectious diseases and electronic recordkeeping.
Rule to protect HCW from infections
OSHA was scheduled to begin soliciting input through teleconferences from small businesses and organizations on an infectious disease rule. A report on that feedback, along with OSHA’s response, is expected in October.
It’s not clear yet what an infectious disease rule might encompass. But in a 2011 Federal Register notice, OSHA indicated that a rule might include requiring a written "worker infection control plan." It also noted that rule might cover non-clinical workers who could have exposures, including housekeeping, facility maintenance and lab workers.
That would make it broader than the nation’s only similar rule, California’s Aerosol Transmissible Diseases Standard.
In its most recent regulatory agenda, OSHA cited the risks of diseases ranging from tuberculosis to MRSA and said: "OSHA is concerned about the ability of employees to continue to provide health care and other critical services without unreasonably jeopardizing their health. OSHA is considering the need for a standard to ensure that employers establish a comprehensive infection control program and control measures to protect employees from infectious disease exposures to pathogens that can cause significant disease."
OSHA also has said it plans to release its final recordkeeping rule change in March 2015, requiring employers to report information from their injury logs and incident reports electronically. That also has become controversial because OSHA said it will publish the information in a searchable, online format.
Employers are concerned about protecting the privacy of individuals and about the presenting numbers without any opportunity for explanation, says Cordaro. "There are too many variables that are left out and not explained," she says.
In any case, simply counting injuries is not the path to safety, says Heidorn of the ASSE. Companies that don’t want to look bad will be tempted to underreport, he says.
With or without an I2P2 rule, companies need to become proactive, he says. "So much of safety in companies is just meeting the standards, doing the bare necessities, instead of this higher professional level of managing risk," he says.
And OSHA still can cite companies based on the general duty clause of the Occupational Safety and Health Act, which requires employers to keep their workplaces free of recognized serious hazards. Even without new rules or legislation, OSHA has found new teeth, including a broader scope for repeat violations and higher penalties, says Conn.
"We’re at enforcement levels we’ve never seen before," he says. "The only thing that slowed them down was the government shutdown and sequestration. Other than that, every year of this administration has been a record year of enforcement."
