Without further ado, here are the five OSHA-related developments you should anticipate in 2014, so says the collective wisdom of the national OSHA Practice Group at Epstein Becker & Green:
1. A Busy OSHA Rulemaking Docket
Although OSHA enforcement has reached levels never before seen by any measure, rulemaking activity under the current administration has been slow. During President Barack Obama’s first term, OSHA identified numerous rulemaking initiatives in its periodic regulatory agenda updates, including rules for combustible dust, crystalline silica, beryllium and an injury and illness prevention program (I2P2) rule. All of these proposed rules, however, missed important rulemaking deadlines or were completely set aside. We expect that to change in 2014 and for the balance of this administration, as the OSHA leadership team will strive to leave its legacy.
Just as we saw OSHA de-emphasize rulemaking in the year leading up to the 2012 presidential election, we already are seeing signs of a typical post-election, second-term, aggressive rulemaking calendar from OSHA.
The first sign of the new rulemaking push could be seen in speeches by David Michaels, the assistant secretary of labor for OSHA, who characterized the proposed I2P2 rule as his and OSHA’s “highest priority.” Secondly, OSHA recently issued its fall 2013 regulatory agenda, which, as we expected, returned several rulemaking initiatives – including the I2P2 rule – from the back burner, where they were deposited prior to the 2012 presidential election, back to the active rulemaking calendar. Finally, OSHA also has introduced new rules, such as a proposed rule to require employers to proactively report to OSHA injuries and illnesses, not just record them on the 300 Log. Other important rules in the proposed or pre-rule stage to monitor in the coming year include:
- Occupational Exposure to Crystalline Silica (comments and hearings coming due in early 2014).
- Request for information about the Process Safety Management Standard (including a reevaluation of the exemption of above-ground atmospheric storage tanks).
- Walking Working Surfaces and Personal Fall Protection Systems (now in the final-rule stage).
- Review/lookback of OSHA chemical standards (an effort to make wholesale changes to existing chemical-exposure limits).
2. OSHA Will Focus on Temporary-Worker Safety
The treatment of temporary workers is expected to become more significant as the Affordable Care Act (ACA) is implemented, particularly when the “employer mandate” kicks in. The ACA will require employers with 50 or more workers to provide affordable coverage to employees who work at least 30 hours per week. This will result in employers using more part-time workers and hiring more contractors; i.e., workers who will not be counted toward the 50-worker minimum for ACA coverage. Both characteristics commonly are associated with “temporary workers.”
With an expected increase in the use of temporary workers, along with recent reports of temporary workers suffering fatal workplace injuries on their first days on a new job, OSHA will make temporary-worker safety a top priority in 2014, and already has launched a Temporary Worker Initiative. OSHA’s stated goals for the Temporary Worker Initiative are to:
- Protect temporary workers from workplace hazards.
- Ensure staffing agencies and host employers understand their safety and health obligations.
- Learn information regarding hazards in workplaces that utilize temporary workers.
To achieve these goals, OSHA is developing outreach materials (such as fact sheets and web pages), and will use a combination of enforcement and training. However, based on OSHA’s track record, we expect this will involve mostly enforcement. OSHA’s director of enforcement programs already issued a memorandum to the agency’s regional administrators instructing them to increase efforts to investigate employers’ use and protection of temporary workers.
This side of the Temporary Work Initiative already is showing results. In the last quarter of FY 2013 alone, OSHA issued citations at 262 worksites where temporary workers allegedly were exposed to safety and health violations. Additionally, OSHA has conducted more than twice as many inspections of staffing agencies this year as it did last year. This trend undoubtedly will continue in 2014, so it is critical for host employers and staffing agencies to understand the dividing line of responsibility for addressing hazards to which temporary workers are exposed.
3. Hazard Communication Comes Into Focus
Dec. 1, 2013, marked the first key implementation deadline of OSHA’s Hazard Communication standard, which recently was amended to align with the United Nations’ Globally Harmonized System of Classification and Labeling of Chemicals. The HazCom standard now requires employers to use a standardized system of labeling chemical containers and a standardized format for safety data sheets (formerly material safety data sheets). The Dec. 1, 2013, deadline was the date by which employers were required to have trained all employees on the new labeling formats and safety data sheet format. We expect OSHA to scrutinize employers’ compliance with that training requirement in the coming year, to make sure the rollout of the rest of the new standard’s requirements proceeds as planned.
The next major deadline under the HazCom standard is not until June 1, 2015, by when employers must implement the new labels and safety data sheets. That work should start in earnest in 2014 or employers will find themselves behind the eight ball when these requirements kick in. During the transition period, chemical importers, distributors, manufacturers and employers may comply with the old HazCom standard, the new HazCom standard or a combination of both.
4. New Judges May Change the Outcomes of OSHA Disputes
The Occupational Safety and Health Review Commission (OSHRC) is a body of independent administrative law judges who adjudicate contests of OSHA citations at the hearing level, and a three-judge panel of commissioners who hear appeals of those cases. Historically, the OSHRC commissioners have included two commissioners from the president’s party and the third from the opposite political party. For years now, the commission has been comprised only of two commissioners, both of the president’s party, and the potentially more pro-employer seat has remained empty until now.
The White House just announced a nominee for the empty seat on the review commission: Heather L. MacDougall. For the past decade, MacDougall has been an attorney representing management in OSHA disputes. Prior to 2003, she served as chief legal counsel and special advisor to the chairman of the OSHRC. Although MacDougall likely will be in the minority in many decisions by the review commission, having a management-side voice in the discussion at that level only can help the employer community.
On the flip side, a development with more potential impact on OSHA disputes is Sen. Harry Reid’s decision to exercise “the nuclear option” to change Senate rules on judicial appointments. Specifically, the Senate approved a rules change in November to eliminate the filibuster on presidential nominees (except for Supreme Court nominees). This means that Obama’s judicial and executive branch nominees no longer need 60 votes to reach the Senate floor for an up-or-down vote.
This matters to OSHA disputes because OSHA cases can be appealed from the three-commissioner panel at OSHRC out to the U.S. Court of Appeals for either the circuit with jurisdiction over the cited workplace or the District of Columbia Circuit. In other words, every OSHA case can be appealed to the D.C. Circuit, which long has been a conservative, pro-employer body. The nuclear option ultimately was executed because three of Obama’s appointees to the D.C. Circuit were being blocked. With the rules changed in the Senate, the president now may be able to stack the D.C. Circuit, and change its complexion from the good forum it is now for employers in OSHA cases.
5. More Attention on Heat Illness
Over the past few years, Cal/OSHA aggressively has enforced California’s Heat Illness Prevention statute, Title 8 Section 3395(d), which requires employers to provide to employees training, access to shade and adequate drinking water for work outdoors in high-heat conditions. Under Cal/OSHA’s heat illness statute, employers also are required to maintain one or more shaded areas, with either open-air ventilation, forced ventilation or forced cooling, and employers are required to allow and encourage employees to access these shaded or cooled areas for cool-down periods of no less than five minutes or as employees feel the need to do so.
On Oct. 10, 2013, the California Legislature joined Cal/OSHA’s fight, and signed a bill amending California Labor Code Section 226.7 to include penalties for failure to provide cool-down recovery periods (CDRPs). This requirement kicked in on Jan. 1; now California employers are required to pay a premium for not providing CDRPs
An important distinction between the new statute and Cal/OSHA’s heat illness prevention rule is that Cal/OSHA’s rule applies only to employees working in high-heat conditions, whereas the CDRP legislation does not identify specific working conditions that trigger it. Employees working in air-conditioned offices also may be entitled to CDRPs. The amendment also now allows private litigants to recover for violations, so 2014 is sure to see substantial new litigation in California including new heat illness-related wage-and-hour class-action suits. This also will trigger more employee complaints to Cal/OSHA about heat illness to support their civil suits, and therefore, even more Cal/OSHA heat illness prevention citations.
Authors Eric J. Conn, Kathryn M. McMahon, Amanda R. Strainis-Walker, Casey M. Cosentino, Alka N. Ramchandani and Lindsay A. Smith are part of the OSHA Practice Group at Epstein Becker & Green, and have extensive, hands-on experience in all aspects of OSHA law at both the federal and state level. Epstein Backer & Green is one of the nation’s preeminent labor and employment law firms, providing counsel focused on specific safety and health matters for clients, as well as identifying and addressing “big picture” implications of their OSHA issues.