OSHA News for December 2013

As 2013 comes to a close, OSHA has been busy making a series of announcements safety professionals will want to hear. The announcements cover a range of safety regulations from Whistleblowing to Recordkeeping, and from to I2P2 to something else. Much of the information covered below relates to OSHA’s 2014 regulatory agenda as spotlighted on the President’s Fall Unified Agenda.

Recordkeeping

OSHA has a number of Recordkeeping related activities happening and with so many moving parts it can be tricky keeping all of the news straight. Here three of the most important changes in development.

I. Clarification of Employer's Obligation to Make and Maintain Accurate Records of Work-Related Injuries and Illnesses  

http://www.reginfo.gov/public/do/eAgendaViewRule?pubId=201304&RIN=1218-AC84

In November, OSHA was expected to issue an NPRM clarifying employers’ responsibilities to record and retain records on work-related injuries and illnesses. It will be a small but significant adjustment to the current Recordkeeping Standard and is intended to counteract a setback OSHA suffered in 2012 when the D.C. Circuit Court of Appeals ruled that OSHA was limited to a six month window in which to cite employers for failure to record an injury and/or illness. Prior to this ruling, OSHA had determined that it could cite employers anytime within a five year window, since OSHA requires employers to keep records for five years; the courts disagreed.

According to the Fall 2013 Unified Agenda, an NPRM is now expected on this item in March of 2014.

II. Improve Tracking of Workplace Injuries and Illnesses

http://www.reginfo.gov/public/do/eAgendaViewRule?pubId=201310&RIN=1218-AC49

As first reported on our blog in November, OSHA is moving forward with an NPRM that would dramatically alter the frequency and quality of Recordkeeping information OSHA requires certain employer to send it. Currently, only a small handful of employers who are required to keep injury and illness records are actually required to forward their information on to OSHA. With the new NPRM, establishments required to keep records that have over 250 employees would be required to send information electronically to OSHA on a quarterly basis. Employers that must keep records, with 20 or more employees, would be required to do the same on an annual basis.

OSHA has gotten a lot of push back on this NPRM and sparks are expected to fly at an informal public meeting scheduled for January 9, 2014 in Washington D.C. when the changes are discussed. Additional comments on the NPRM will be accepted until February 6, 2014.

Dave Johnson, Chief Editor of ISHN magazine wrote an interesting article last week exploring the idea of accountability through public posting of injury and illness data for companies. You can read it here. Essentially, Johnson argues that accountability is a concept being hoisted upon teachers, physicians, and myriad industries, so why shouldn’t employers also be held accountable for workplace safety and health performance in a more concrete and visible manner.

III. Occupational Injury and Illness Recording and Reporting Requirements – NAICS Update and Reporting Revisions

http://www.reginfo.gov/public/do/eAgendaViewRule?pubId=201310&RIN=1218-AC50

This update to the Recordkeeping Rule has progressed beyond the NPRM and is sitting at the Final Action step and is really a two-for-one change. Change one is that it would shift the industry codes used to determine which industries are exempt from the Recordkeeping Rule from the Standard Industrial Classification (SIC) system to the more contemporary North American Industry Classification System (NAICS). The result of this change is that some industries currently exempt would lose their exempt status, while certain other industries that are currently included would be newly exempt.

Change two is that this update would revise the reporting requirements for certain injuries. Currently, OSHA requires reporting within 8 hours of any death or hospitalization of three or more employees at one time, this update would lower the number of hospitalizations that trigger reporting obligations to one. Essentially, any hospitalization would trigger reporting. Furthermore, it would require reporting of all work-related amputations within 24 hours.

Final action had been expected at different times in 2013, but as of the Fall Unified Agenda is no pushed out until at least April 2014.

New Whistleblowing Form

OSHA announced Dec. 5 that it had created a new online whistleblowing form for workers who feel they have been retaliated against to reach out to OSHA for assistance. Once a form is filled out, it is routed to the appropriate regional whistleblower investigator. Employers should take seriously OSHA’s commitment to protecting whistleblowing as it is a key source for OSHA inspections and has been a regulatory priority in terms of money and resources for the past few years.

I2P2

Injury and Illness Prevention Program http://www.reginfo.gov/public/do/eAgendaViewRule?pubId=201310&RIN=1218-AC48

For two, now going on three years, OSHA Director Dr. David Michaels has called the promulgation of a an I2P2 program a top OSHA priority. An NPRM had been expected this month, but has now been pushed back at least until September 2014. If enacted, I2P2 would oblige employers to proactively find and fix hazards in the workplace following OSHA prescribed steps. Similar to several of the Recordkeeping provisions, OSHA has received pushback from stakeholders on I2P2 who fear such a standard could set employers up for new and extraordinary liabilities.

Related Chemical Rulemaking Activity

Additional actions and delays have been enacted on a series of standards related to chemical hazards, including the following topics:

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