Given the political climate these days in Washington, DC, we decided not to post a list of top OSHA predictions for 2014. But, we are much more confident about sharing our “watch list” concerning OSHA for the upcoming year.
Here are the top 10 items (in no particular order) that we’ll be keeping our eyes on regarding OSHA in 2014:
- Criminal prosecutions for OSHA violations. This enforcement tactic has gone from a trickle in previous years to a steadier drip. In other words, it’s still pretty uncommon, but there are more cases than there used to be. And there’s more potential for additional cases in the upcoming years because OSHA is referring all fatality cases and investigations in which there are three or more serious injuries to district attorney offices for possible criminal prosecution.
- Comments on OSHA’s proposed silica standard update and the agency’s response. The extended comment period ends Jan. 27, 2014. OSHA could finalize the rule, which includes a more stringent permissible exposure limit (PEL) for silica, later in 2014. A wild card in all this: How would the new standard affect the young fracking industry in the U.S.?
- Updating injury and illness reporting requirements. This revision would update the list of industries that are exempt from reporting injuries and illnesses to OSHA. It would also revise certain reporting requirements. The existing regulations require employers to report to OSHA within eight hours any work-related incident resulting in the death of an employee or the inpatient hospitalization of three or more employees. The revision would require employers to report to OSHA within eight hours all work-related fatalities and all work-related inpatient hospitalizations; and within 24 hours, all work-related amputations.
- OSHA’s proposed Injury and Illness Prevention Program requirement. OSHA chief David Michaels has referred to this initiative as his No. 1 priority. In its most recent regulatory agenda, OSHA estimates it will release a notice of proposed rulemaking on I2P2 in September 2014. While the Obama administration has three years left, the clock is ticking on this one. It’s likely the agency doesn’t meet the September date for releasing the NPRM, but if it’s not released by the end of 2014, this administration will only have two years to enact I2P2.
- Process safety management changes. As called for by President Obama’s executive order on improving chemical safety, OSHA intends to issue a request for information (RFI) regarding process safety management and prevention of major chemical incidents. The RFI will identify issues related to updating OSHA’s Process Safety Management standard.
- Use of OSHA’s General Duty Clause, particularly with chemical exposures. When a specific regulation isn’t available to address a potential workplace hazard, OSHA uses the GDC to fine companies. It’s done this several times recently with cases involving heat-related fatalities. OSHA administrator David Michaels has also said he wouldn’t hesitate to use the GDC in employee deaths involving required use of a cell phone while driving. OSHA also used the GDC to fine a company for allowing worker exposure to airborne concentrations of styrene above recommended exposure limits. The exposure in question was within OSHA’s permissible exposure limits but above more updated recommended voluntary standard. OSHA watchers have speculated the agency could use newly issued voluntary exposure limits in conjunction with the GDC to issue fines to companies that expose workers to chemicals within regulatory PELs.
- Willful vs. serious violations. To prove a violation was willful in nature, OSHA must show it was “committed with intentional, knowing or voluntary disregard.” A willful violations carries a potential maximum penalty of $70,000, compared with one categorized as serious that tops out at $7,000. OSHA has a goal to increase the average cost of penalties since Congress hasn’t passed increases in penalty maximums. But this year, OSHA suffered a setback in its ability to use the willful categorization. An administrative law judge at the Occupational Safety and Health Review Commission downgraded fines issued by OSHA to BP Products North American and BP-Husky Refining from willful to serious. The judge in this case reduced the fines from $70,000 each to $7,000 each. Given this case and others in which a violation’s willful status has been batted down on appeal, it will be interesting to see how OSHA categorizes fines going forward.
- Voluntary Protection Program (VPP). The Department of Labor’s Office of the Inspector General recently questioned whether OSHA has sufficient controls for the selection, re-evaluation and monitoring of companies in the VPP. The OIG made seven recommendations which could impact whether companies with serious injuries get to stay in the program.
- Recording ergonomic injuries. OSHA recently lost an appeal from Caterpillar Logistics over a fine for not recording an employee’s work-related ergonomic injury. The Seventh Circuit Court of Appeals questioned the definition of a work-related injury, specifically when the work environment contributes to the resulting condition. The court said it didn’t have enough information to determine what “contributed to” meant. Whether OSHA attempts to clarify what it means by “contributed to” remains to be seen.
- Fines for noncompliance with Globally Harmonized System of Classification and Labeling of Chemicals. Companies had to train employees about the new safety data sheets and symbols under the GHS revision of OSHA’s hazcom standard by Dec. 1, 2013. That means companies can now be fined for not complying.