OSHA ramps up regulatory enforcement, use of general duty clause citations

By Chris A. Paul

The U.S. Department of Labor announced its semi-annual regulatory agenda on July 7, 2011, and numerous items involve the Occupational Safety and Health Administration.

Jordan Barab, deputy assistant secretary of labor for OSHA, recently stated that OSHA’s regulatory agenda includes extension of enforcement beyond traditionally targeted manufacturing and construction sectors. Barab said that OSHA is issuing more willful citations, which carry maximum fines of $70,000 per penalty, ostensibly in an effort to achieve a greater deterrent effect. Barab also defended OSHA’s increased use of general duty clause citations as well as the issuance of negative press releases by the agency when it issues citations. He said that OSHA will continue to use these statutory general duty clause “catch all” citations to address alleged workplace hazards not specified in regulations, including those affecting employees due to summer heat.

Some of the more interesting and significant are as follows:

1. Combustible dust (pre-rule)
   OSHA is planning to develop a combustible dust standard for general industry.
   
   
2. Infectious diseases (pre-rule)
   OSHA is planning to issue an infectious disease standard wherein employers must establish a comprehensive infection control program and institute measures to protect employees in healthcare and other “high risk environments” from infectious disease exposures.
   
   
3. Preventing backing injuries and fatalities (pre-rule)
   OSHA is seeking comment on technological and nontechnological solutions to prevent backover incidents. Emerging technologies in the field of operations include devices, such as cameras, radar and ultrasonic devices to help monitor the presence of workers on foot in blind areas, and monitoring technology, such as tag-based warning systems that use radio frequency (RFID) on equipment to detect electronic tags worn by workers. The use of spotters and internal traffic control plans can also make backing operations safer. While backing incidents can prove fatal, workers can suffer severe, nonfatal injuries as well. A review of OSHA’s IMIS database found that backing incidents can result in serious injury to the back and pelvis, fractured bones, concussion, amputation and other injuries. OSHA believes that it is necessary to request information from those involved in backing operations and the general public to better understand how to prevent backing incidents.
   
   
4. Injury and illness prevention program (I2P2) (prerule)
   Under I2P2, employers would be required to inspect, identify and correct hazards in their workplaces.
   
   
5. Occupational exposure to crystalline silica (proposed)
   A notice of a proposed rule to create stricter exposure limits for silica will soon be published according to the regulatory agenda.
   
   
6. Walking working surfaces and personal fall protection systems (proposed)
   Slips, trips and falls are among the leading causes of work-related injuries and fatalities. OSHA has been working to update these rules to reflect current technology available to reduce these risks.
   
   
7. Recording and reporting musculoskeletal disorders (“MSD”) (proposed)
   Under the proposal, employers would have to check an additional box for injuries or illnesses related to MSD on their OSHA 300 logs.
   
   
8. Modernizing OSHA’s recording and reporting requirements (proposed)
   OSHA proposes issuing a notice of proposed rulemaking to change its reporting system to both update and modernize the “efficient and timely collection of data to improve the accuracy and availability of relevant records and statistics.” In turn, OSHA would be expanding its authority under the 29 CFR 1904 recordkeeping regulations to collect and make injury and illness information available under the regulations.
   
   
9. Electrical power transmission and distribution; electrical protective equipment (final)
   This will, among other things, update the construction industry standard for the safety of workers during the construction of electric power transmission and distribution lines. OSHA will also revise various general industry requirements affecting electric transmission and distribution work, including updating the provisions for providing electrical PPE to appropriate workers. This rule is scheduled to be issued in September 2011.
   
   
10. Hazard communication (final)
    OSHA has pushed back the date for issuing the final rule on “harmonizing” the hazard communication standard in 29 CFR 1910.1200 with the United Nation’s Globally Harmonized System for Classification in Labeling of Chemicals (“GHS”). The new rule, scheduled to also be issued in September 2011, is supposed to deal with problems associated with multiple sets of requirements for labels and safety data sheets for U.S. manufacturers, distributors and others involved in international trade. The GHS is designed to allow for one global system by using standardized pictograms and hazard statements.