Election gives energy to OSHA

Look for I2P2, MSD column rules

Expect a re-energized OSHA with the reelection of President Barack Obama: New recordkeeping rules, a proposed Injury and Illness Prevention Program (I2P2) standard, and possibly an infectious diseases standard.

David Michaels, MD, MPH, assistant secretary of labor for the U.S. Occupational Safety and Health Administration, has called I2P2 his highest priority. The proposed standard would require employers to assess their worksites, identify hazards and work to reduce the risks. Health and safety experts now expect that initiative to move forward.

“Anybody who supports reasonable regulations to protect health care workers so they can provide higher quality patient care should be happy with the outcome of the election,” says Bill Borwegen, MPH, safety and health director of the Service Employees International Union (SEIU).

In a regulatory agenda, OSHA had signaled that the first step of its rule-making process on I2P2 would begin in June 2011, with the release of a draft version for the Small Business Regulatory Enforcement Fairness Act (SBREFA) review. That release never came, but OSHA did issue a white paper extolling the virtues of I2P2.

OSHA said that injuries and illnesses declined by 9% to 60% in eight states that either require an injury and illness prevention program or provide incentives or requirements through workers’ compensation.

The agency estimates that a national I2P2 rule could reduce injuries by 15% to 35% among employers who don’t currently have prevention programs. “At the 15% program effectiveness level, this saves $9 billion per year in workers’ compensation costs; at the 35% effectiveness level, the savings are $23 billion per year,” OSHA says.

OSHA promises flexibility

Although the details of I2P2 are not yet available, occupational health professionals have lauded the concept. “We have been supportive of an I2P2 process,” says Pat O’Connor, director of government affairs for the American College of Occupational and Environmental Medicine (ACOEM).

OSHA has promised to provide flexibility in an I2P2 standard so that current, successful programs will not be disrupted. “Our primary goal in our proposal is to reach those employers that do not have an effective program,” OSHA said in online comments. “It is not the agency’s intention to require that employers who have previously implemented effective programs that share the basic elements of OSHA’s rule to make unnecessary changes.”

Meanwhile, OSHA is also expected to pursue an infectious disease standard that would cover airborne and droplet exposures. A proposed standard would likely be patterned after the California Aerosol Transmissible Diseases standard, which requires health care facilities to maintain an aerosol transmissible diseases exposure control plan.

Under the California standard, facilities identify their hazardous procedures and job classifications with potential exposure, determine how to reduce those hazards with personal protective equipment and other measures, and provide training. As with requirements for a bloodborne pathogen exposure control plan, frontline employees must be involved in drafting the exposure control plan and annual updates.

Seven years for a new rule?

A second term gives the Obama administration more political leeway. But it typically takes OSHA more than seven years to finalize a new standard, according to the General Accounting Office.

So it is far from certain that OSHA can take an I2P2 rule through the opposition from business interests and political challenges. (When Rep. Darrell Issa (R-CA), the 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,” I2P2 was on the list of several leading industry organizations.)

Yet even the rule-making process could spur changes. Employers may begin to adjust their policies even before a rule becomes final, says Brad Hammock, Esq., workplace safety compliance practice group leader at Jackson Lewis LLP in Washington, DC.

“Many people within OSHA believe strongly that a proposed rule has that effect,” says Hammock, who was counsel for safety standards at OSHA from 2005 to 2008.

OSHA has already signaled an emphasis on injury prevention through enforcement. In 2012, OSHA launched a three-year National Emphasis Program on nursing homes and trained compliance officers on patient/resident lifting and identification of a range of hazards in the health care industry.

The compliance directive prompted inspectors to determine “whether there is a process to ensure that work-related disorders are identified and treated early to prevent the occurrence of more serious problems and whether this process includes restricted or accommodated work assignments.”

But Borwegen notes that any emphasis program is short-lived. “At the end of the day, the legacy of the administration will be how many standards they get out that are meaningful,” he says. “The next administration can wipe clean these initiatives. The only thing that has lasting changes is a standard.”

Recordkeeping will emerge from OMB

Other changes are certain as long-delayed efforts move forward. The recordkeeping revision that would create a special column on the OSHA 300 log for musculoskeletal disorders has been held up in the Office of Management and Budget. In the past year, Congress also had blocked OSHA from implementing the rule through a “rider” on the FY2012 bill that funds OSHA.

That rider will expire, and the MSD column rule is expected to emerge from OMB, Hammock says.

Other recordkeeping proposals under review by OMB also may advance to rule-making. “There’s long been a concern that injuries aren’t being completely or accurately reported,” says O’Connor. “There is a proposal to tighten that up, to move from a paper-based recordkeeping to electronic recordkeeping. We’d like to see that discussion move forward.”

More generally, occupational health may gain a higher profile as the Affordable Care Act is fully implemented. The health reform places a greater emphasis on prevention, including worksite wellness programs.

“ACOEM believes there’s a huge benefit to be gained for the health care system through effective wellness programs,” O’Connor says.