Under the Biden administration, OSHA rulemaking has increased dramatically. As a result, there are a variety of new regulations and enforcement strategies currently being discussed that will impact general industry and construction. Below, we focus on the top 5 upcoming changes to safety regulations affecting employers.
- OSHA Staffing and Enforcement
OSHA head Doug Parker and Deputy Secretary Jim Frederick are focused on “rebuilding” the agency by filling vacant inspector slots and senior positions to carry out administration policies. OSHA is also bringing back its Site-Specific Targeting Inspection Program that will focus on high-hazard worksites and non-responders to current electronic recordkeeping reporting requirements. The goal of this initiative is to increase inspections and enforcement.
- OSHA Recordkeeping Regulations
On March 30, 2022, OSHA published proposed amendments to its recordkeeping regulations for employers to submit additional injury/illness info to OSHA in keeping with what the Obama administration had in mind. Current regulations require Form 300A to be electronically filed with OSHA by employers with 250 or more employees who must maintain injury/illness records, and by employers with 20-249 employees in specific industries with high rates of injuries/illnesses (e.g., construction).
One change being proposed is that covered establishments with 100 or more employees in certain high-hazard industries will be required to electronically submit information from their Forms 300, 301 and 300A to OSHA once a year (rather than just the 300A) and the data will be posted online. There are a variety of concerns related to the public posting of injuries, ranging from employee privacy to the ability of competitors to access the data and use it advantageously.
- OSHA Heat Illness Standard and NEP
The first meeting of the NACOSH Work Group on Heat Injury and Illness Prevention in Indoor and Outdoor Activities was held February 25. OSHA’s Director of the Office of Engineering Safety (Directorate of Standards and Guidance) said the Advanced Notice of Proposed Rulemaking received over 1,000 comments and the Working Group is reviewing them as well as heat-illness guidance materials for use in rulemaking.
On April 12, Labor Secretary Walsh and Vice President Harris announced the “first ever” OSHA National Emphasis Program (NEP) to reduce workplace heat-related illnesses and injuries. Per DOL’s press release, “…this NEP is a way to immediately improve enforcement and compliance efforts, while continuing long-term work to establish a heat illness prevention rule.” OSHA plans inspections in over 70 high-risk industries (including construction) when the National Weather Service issues a heat warning or advisory for a local area. OSHA also will engage in outreach on days when the heat index is 80ᵒ F or higher.
Employers in warmer climates are concerned about the standard and the 80ᵒ F baseline rule for inspections. The rule may give OSHA a justification to enter any jobsite under the NEP where temperatures are greater than the baseline.
- OSHA Proposes to Decertify Arizona’s State Plan
On April 26, 2022, OSHA announced it is moving to decertify Arizona’s state plan stating that it is “responding to concerns about Arizona’s commitment to worker safety and health…[after] nearly a decade-long pattern of failures to adopt and enforce sufficiently effective standards and enforcement policies.” Only Obama’s and now Biden’s OSHA have questioned Arizona’s commitment to worker safety, whereas contractors have had a positive dialogue with the AZ Division of Occupational Safety and Health (ADOSH). The top Republican on the House Education and Labor Committee, Rep. Virginia Foxx, put out a statement critical of OSHA’s proposed takeover of the Arizona state plan.
- OSHA Rulemaking for the First COVID-19 ETS
On March 23, 2022, OSHA reopened the comment period on its COVID-19 Emergency Temporary Standard (ETS) for healthcare (OSHA’s 1st ETS), which concerns making the ETS a permanent standard that could include coverage of construction activities being performed in healthcare facilities. This action by OSHA would appear to be an attempt to salvage one of its COVID temporary standards after its second one was overturned by the Supreme Court and also set the predicate for a broader infectious disease standard for health care. However, critics contend that OSHA missed its statutory six-month deadline for issuing a final standard and had also withdrawn it, meaning the agency must start from scratch with a new rulemaking process.
We anticipate additional safety regulations to be generated by OSHA in the coming months and will continue to keep you advised of developments that impact your business.