With a little over a year until the 2016 Presidential Election, and roughly 15 months until the end of President Obama’s term, one would be prudent to prepare for potential last minute changes before the next president takes office. Noting this, safety professionals could be some of the most heavily affected as President Obama takes his final shot at fulfilling his agenda.
Most notably, according to Safety+Health Magazine, one can expect attempts to finalize Silica, Beryllium, Recordkeeping, I2P2 and Combustible Dust, Walking/Working Surfaces (Slip, Trip, and Fall), and any possible “Midnight Regulations” between November 2016 and January 2017.
However, among employers is one major concern: Non-regulatory actions. How could these affect safety professionals?
Can We Expect OSHA Non-Regulatory Actions during Obama’s Last Year?
For formal rulemaking, the Department of Labor and the Occupational Safety and Health Administration take into consideration comment from qualified and opinionated sources before finalizing a document. Although fair, the process could take years to modify, approve, and enact.
However, without time being on the side of the Obama Administration, employers could see an increase of non-regulatory actions: Interpretations, Guidances, and Sub-Regulatory actions that can be passed without formal process, discussion, or rebuttal from groups.
Marc Freedman, Executive Director of Labor Law Policy for the US Chamber of Commerce, has demonstrated concern for the changes that may come under these non-regulatory actions.
“I worry about the interpretations and the guidances and the sub-regulatory actions,” Freedman said. “There’s no way to respond, no way to provide input and, in most cases, it’s almost impossible to challenge these things.”
Non-regulatory action has changed the way employers do business, and has garnered the disdain of employers and industry groups.
One Example of Past Non-Regulatory Actions Affecting Employers
Highlighted in a Law360 Blog, one notable case of OSHA announcing non-regulatory actions through informal memorandum caused major changes for employers.
General Duty Clause and Permissible Exposure Limits (PEL)
The General Duty Clause of the OSH Act requires that each employer “furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.”
A simple, overarching catch-all exemplified in the citation against Wal-Mart Stores in the 2009 trampling death of a Wal-Mart employee, the general duty clause has been also used—somewhat successfully—to push across citations for highly contested regulatory decisions. An example of this is modification to the permissible exposure limit.
With many of the PELs remaining similar since 1971, OSHA attempted to update many PELs in 1989. This effort was vacated, as the agency failed to test the feasibility analyses mandated by the OSH Act.
More recently in July 2013, OSHA unveiled its Chemical Safety Toolkit with the assistance of CAL-OSHA, NIOSH, and ACGIH, noting stricter PELs than the 1971 standard. Three months later, using the General Duty Clause, OSHA cited a Wisconsin manufacturer for styrene exposure at 1.3 times the NIOSH recommendation. The one caveat: The employer was in compliance, as allowable concentration of the chemical was not in excess of OSHA’s PEL of 100 parts per million. Bloomberg BNA covered the entire story here.
Further Reading on Non-Regulatory Action
Law360 digs deeper into recent use of non-regulatory action, highlighting a June 2015 shift in Process Safety Management that, without warning outside of memorandum, vastly changed the way PSM applicability was determined. Read more at Kelley Drye.
Naturally, not all of the actions could be considered ‘anti-employer,’ and this may even end up a non-issue as most of the OSHA maneuvers during Obama’s tenure have been relatively straightforward.
As noted in the Safety+Health article, the agency also could pursue more employer-friendly initiatives.
Celeste Monforton, professorial lecturer at the Milken Institute School of Public Health at George Washington University, noted OSHA’s Spanish-language outreach – many pages on the agency’s website are in Spanish – and its continuing compliance assistance efforts.
ASSE members have been asking for OSHA guidance on I2P2, and the agency could issue that, Dave Heidorn, manager of government affairs and policy for the ASSE said.
Likewise, an OSHA advisory group is working on a guidance document on temporary and contractor workers, and that likely will be issued soon, according to Luke George of the NSC.
Going Beyond Compliance: A Proactive Safety Management System
All in all, it pays to be prepared.
Optimum Safety Management is committed to helping your organization take advantage of the gains in productivity, engagement, and profitability—the Return on Safety™ that comes with an effective safety management system.