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Pushback: OSHA backs off new regs, infectious disease standard in doubt
But injury, illness prevention still a 'priority'
The U.S. Occupational Safety and Health Administration is putting the brakes on its push for new regulations.
Citing the concerns of small businesses, OSHA "temporarily" withdrew its pending recordkeeping rule requiring a separate column on the OSHA 300 log for musculoskeletal disorder injuries. Business complaints also prompted OSHA to back down on a stricter interpretation of its noise protection standard.
While the agency is still pursuing an infectious disease standard and a rule requiring employers to have an injury and illness prevention program, the most recent regulatory agenda indicates that progress will be slow on those initiatives.
OSHA administrator David Michaels, PhD, MPH, has said that creation of a rule requiring employers to have a robust injury and illness prevention program is his priority. But the review of the potential impact on small businesses a required first step that includes an early draft version of the new regulation will not begin until June.
"It is unbelievable to me how they have backed off from their aggressive regulatory posture," says Brad Hammock, Esq., workplace safety compliance practice group leader at Jackson Lewis LLP in the Washington DC region office. "My sense is that some people in the administration I don't know at what level or whom are providing some direction to OSHA to ratchet back their regulatory initiatives. That's the only obvious conclusion."
Politically, the moves seem to coincide with President Barack Obama's overtures to business. In January, Obama issued an executive order directing agencies to review rules and identify ones that are "outmoded, ineffective, insufficient, or excessively burdensome, and to modify, streamline, expand, or repeal them . . ."
Some industry groups had complained about the MSD recordkeeping rule, fearing it was a first step toward re-introduction of the much-maligned ergonomics standard. The rule had been under review by the Office of Management and Budget (OMB) for an unusually long time, and this action pulls it back from that review. Barely three weeks before the withdrawal, OSHA officials responded to questions in an online chat by saying that the MSD column would become effective in 2012.
It is almost unheard of for the agency to pull a rule from the OMB review and solicit more comments, says Hammock. But OSHA said it will work with the U.S. Small Business Administration's Office of Advocacy to "seek greater input" from small businesses.
"Work-related musculoskeletal disorders remain the leading cause of workplace injury and illness in this country, and this proposal is an effort to assist employers and OSHA in better identifying problems in workplaces," Michaels said in a release. "However, it is clear that the proposal has raised concern among small businesses, so OSHA is facilitating an active dialogue between the agency and the small business community."
Bill Borwegen, MPH, health and safety director of the Service Employees International Union (SEIU), says he is confident that the recordkeeping change will survive an additional review. "Employers already have to list [MSD injuries]," he says. "[The change] would just make it easier to quickly review the extent of these injuries on the log."
Enforcement still strong
Generally, OSHA has been taking a tougher stance under Obama than in the Bush administration, with a greater emphasis on enforcement rather than voluntary compliance. The agency hired more inspectors, and inspections rose to about 41,000 in FY 2010. The agency also promised to crack down on "severe violators" with repeat inspections and higher penalties.
Rule-making has always been a tedious and difficult process for the agency. But until the recent regulatory agenda, OSHA seemed to be moving ahead steadily. The Small Business Regulatory Enforcement Fairness Act (SBREFA) review usually isn't a sticking point but it has been delayed until June for the injury and illness prevention program rule.
"It's a very preliminary process in my view. I can't understand why they would need to push that off another six months," remarks Hammock.
In an online chat, OSHA officials said they simply were being thorough. "This is a very important project and it is important that the agency get it right," they said in response to online questions. "While we have accomplished a lot since we announced this project in the Spring 2010 Regulatory Agenda, we have much more to do. We want to gather as much information as possible in advance of SBREFA to make the process as productive as possible."
Meanwhile, the agenda shows no new action on an infectious diseases standard before the spring. "The infectious disease rule also just appears to be stuck in mud," says Hammock. "They didn't even put a new specific upcoming action. They're still reviewing comments."
I2P2 is OSHA's priority
With delays in rule-making, it's unlikely a significant new rule could become final by 2012. "If they really want to finalize one of these major rules before the end of President Obama's first term, for a major rule like I2P2 [injury and illness prevention program] or infectious disease transmission, I think they need to have [already] proposed that rule," says Hammock.
OSHA first tried to develop a rule requiring injury and illness prevention programs more than a decade ago. After gathering comments from hundreds of stakeholders, OSHA issued a "draft proposed rule" for SBREFA review in 1998. The agency never issued a proposed rule, and the item was withdrawn from the regulatory agenda in 2002, during the Bush administration.
Meanwhile, 12 states have adopted requirements for employers to have programs designed to identify and address workplace hazards. OSHA issued voluntary guidelines in 1989.
Based on those models and the prior draft, an OSHA rule would likely include requirements for management commitment and employee involvement in the program, worksite analysis, hazard prevention, and training. It would represent a change in perspective from responding to injuries to eliminating hazards. And it would be "the most significant action that the agency took in rulemaking in decades," says Borwegen.
In fact, taking a slower, cautious approach may help OSHA build its case and prepare for opposition, he says. "It's David Michaels' number one priority," says Borwegen. "The ability to get this standard out will be a major measure of success of this administration."
In the online chat, OSHA didn't comment on political considerations. But the Republican majority in the House brings new potential obstacles. In the past, Congress rescinded an ergonomics rule and limited enforcement of OSHA requirements for fit-testing of respirators in health care.
Rep. Darrell Issa (R-CA), the new chairman of the House Committee on Oversight and Government Reform, asked more than 150 trade associations to identify regulations that they consider to be "burdensome." OSHA's proposal to create an injury and illness prevention program rule was on the list of several leading industry organizations, including manufacturers, lumber dealers, and the die casting industry.
For example, the National Lumber and Building Material Dealers Association told Issa the rule might "disrupt safety programs that have measurable successes. We are also concerned that it may allow OSHA investigators to substitute their judgment of the employer's plan on how to achieve compliance or how to address an injury not regulated under a specific standard."
The American College of Occupational and Environmental Medicine (ACOEM) supports the creation of an injury and illness prevention rule, with involvement of frontline workers to help identify hazards, says Pat O'Connor, director of government affairs in Washington, DC. "We would hope that occupational health providers [also] would be an integral part of developing and implementing an I2P2 program," he says.
Michaels views an I2P2 rule as a way to reduce a myriad of hazards without the onerous task of making individual rules. "We recognize that we cannot have standards for all hazards," OSHA said in the chat. "This is the reason we are moving toward requiring employers to have Injury and Illness Prevention Programs."
Infectious disease rule in limbo
Opposition may build on other pending OSHA actions. Infection preventionists have aired their concerns about an infectious disease standard.
"While we understand OSHA's interest in creating a standard that maximally protects HCWs from infectious agents, we have concerns about the potential scope and breadth of this potential undertaking," Richard Whitley, MD, FIDSA, the president of the Infectious Diseases Society of America wrote to OSHA. "The advantages of establishing a new standard for [health care workers] can be easily outweighed by the unforeseen consequences caused by such a standard, particularly if the standard is not supported by scientific evidence."
a.OEM suggested that OSHA rely on the "general duty clause" (which requires employers to maintain a workplace free of serious hazards) or on a more generic standard requiring hazards to be addressed. OSHA is simply not flexible enough to adapt to changes in infection control, ACOEM said in its comments.
"ACOEM is concerned that an OSHA standard addressing the broad range of infectious agents other than bloodborne pathogens will take years to develop and finalize, that the knowledge base on which some of its components will be based will be outdated by the time the standard is passed, and that it will not be possible for OSHA to further develop its guidance to respond to novel infectious threats or advancements in our understanding of infectious disease transmission," it said.
California's Aerosol Transmissible Disease standard is thought to be a possible model for an OSHA standard, but OSHA indicated an interest in covering a range of transmission modes.
In the online chat, OSHA officials said the agency "has not yet determined the scope of OSHA's rulemaking for Infectious Disease. We are currently reviewing the information received in response to the [request for information] in order to determine what action OSHA should take in this area."
In other regulatory areas, OSHA said it would update the permissible exposure limits for chemicals. Rather than going through an extensive rule-making process to set PELs for dozens of chemicals, OSHA said it is considering "programmatic approaches" to updating limits. "We are currently in the process of selecting 10 to 15 chemicals to begin targeting through our enforcement efforts," the agency said.
Meanwhile, OSHA is continuing its National Emphasis Program on record-keeping, targeting employers with low rates of injury in high-risk industries. (The target list includes nursing homes but not hospitals.) OSHA is actively discouraging programs that provide incentives for non-reporting of injuries. "We take injury reporting very seriously because failure to recognize and report injuries leads to failure to investigate injury causes. If injuries are not investigated, it is more difficult to prevent future injuries from occurring," the agency said.
It's not clear how OSHA will respond to the president's order to review existing regulations.
"It's hard right now to say what effect this might have on the health care industry, either [related to] current regulations or regulations in the future," says O'Connor.
OSHA's safety and health management checklist
a. part of its voluntary guidance, OSHA offers this checklist for an effective workplace safety and health management system. More information is available at www.osha.gov/dsg/topics/safetyhealth/index.html.
Management commitment and employee involvement
Develop and communicate a safety and health policy to all employees.
Demonstrate management commitment by instilling accountability for safety and health, obeying safety rules and reviewing accident reports.
Conduct regular safety and health meetings involving employees, managers and supervisors.
Assign responsible person(s) to coordinate safety and health activities.
Integrate safety and health into business practices (e.g., purchases, contracts, design and development).
Involve employees in safety and health-related activities (e.g., self-inspections, accident investigations and developing safe practices).
Recognize employees for safe and healthful work practices.
Evaluate all workplace activities and processes for hazards.
Reevaluate workplace activities when there are changes in processes, materials, or machinery.
Conduct on-site inspections, identify hazards and take corrective actions.
Provide a hazard reporting system for employees to report unsafe and unhealthful conditions.
Investigate all accidents and near misses to determine their root causes.
Hazard Prevention and Control
Eliminate and control workplace hazards (e.g., engineering controls, workstation design and work practices).
Establish a preventive maintenance program.
Keep employees informed of safety and health activities and conditions.
Plan for emergencies (e.g., create an evacuation plan, train employees and conduct fire drills).
Record and analyze occupational injuries and illnesses.
Training for employees, supervisors and managers
Provide training on specific safe work practices before an employee begins work.
Provide additional training for new work processes and when accidents and near misses occur.
Provide refresher training on a routine basis.