OSHA Focus For 2016
What to Expect from OSHA in 2016 and Beyond
By Mark A. Lies, II, Patrick D. Joyce and Adam R. Young
The New Year is here and with that comes yet another year of enhanced OSHA enforcement and new OSHA regulations. Further, due to the upcoming end of President Obama’s time in office, questions exist as to whether OSHA will continue with its aggressive agenda of enhanced enforcement with increased citations and greater penalties or whether OSHA will respond due to political pressure from the Congress. In either case, this year will bring new levels of uncertainty with the agency that we have not seen since the current Administration took office in 2009. This article will address OSHA’s current and upcoming enforcement initiatives and trends, all of which will affect employers in the coming year.
OSHA’s Enforcement Initiatives
Though a number of OSHA’s enforcement initiatives may not technically be considered new for 2016, we can expect that OSHA will continue to increasingly issue citations under the General Duty Clause and the multi-employer worksite doctrine. We can also expect OSHA to continue to focus its attention on the training and protection provided to temporary employees, especially under OSHA’s Powered Industrial Truck (forklift) standard, Personal Protective Equipment (PPE) standards and Lockout Tagout (LOTO) regulations. OSHA has also been stepping up its workplace heat illness initiative, sending expansive subpoena requests to dozens of employers engaged in industries where employees typically are potentially exposed to heat, including manufacturing and construction, even if no injuries or illnesses have been reported. As such, it is important that employers remain aware of these issues to try to limit liability in 2016.
Increased OSHA Penalties
The new bipartisan budget, passed by both the House and the Senate and signed by President Obama on November 2, 2015, contains provisions that will raise OSHA penalties for the first time in 25 years. The budget allows for an initial penalty “catch up adjustment,” which must be in place by August 1, 2016. The maximum initial “catch up adjustment” will be based on the difference between the October 2015 Consumer Price Index (CPI) and the October 1990 CPI. The October 2015 CPI was released on November 17, 2015, and came in at 237.838. Based on the October 1990 CPI of 133.500, the maximum catch up adjustment will be approximately 78.16% and the new maximum penalties could be:
Current August 2016
Other than Serious violations $7,000 $12,471
Serious violations $7,000 $12,741
Willful violations $70,000 $126,000
Repeat violations $70,000 $126,000
After the initial catch up adjustment, OSHA will be required to implement annual cost of living increases, with the adjustment tied to the year over year percentage increase in the CPI. Adjustments must be made by mid-January each subsequent year. OSHA has the option to implement a catch up adjustment less than the maximum if the Agency determines increasing penalties by the maximum amount would (1) have a “negative economic impact” or the social costs of the increase outweigh the benefits and (2) the Office of Management and Budget agrees. However, Assistant Secretary of Labor for Occupational Safety and Health Dr. David Michaels has long advocated for a substantial increase in penalties so it is difficult to envision the Agency seeking anything other than the maximum increase.
Increased Use of the General Duty Clause
Under the Occupational Safety and Health Act’s General Duty Clause, designated as section 5(a)(1), employers are required to protect employees from recognized workplace hazards that are correctible and likely to cause serious harm or death. Where OSHA lacks a specific standard to address a workplace hazard, the Agency has increasingly used the general duty clause as a “gap filler” for enforcement. OSHA thus has used the General Duty Clause to cite employers for a wide range of alleged hazards, including the following items, and to enforce policies the Agency issued through guidance documents rather than formal regulations.
• Illness due to exposure to heat and cold
• Arc flash/arc blast
• Combustible dust
• Chemicals and other hazardous materials for which there is no existing regulation
• Fall protection
This year, we expect that the Agency will use the General Duty Clause to cite employers for repetitive tasks causing ergonomic issues and musculoskeletal disorders. Moreover, in light of the increasing publicity given to the hazard because of tragic incidents involving workplace shootings, OSHA will continue its emphasis on citing employers for workplace violence incidents and violations, particularly in certain industries such as healthcare, certain retail facilities and public transportation such as taxi cabs. Employers should maintain policies and training on these issues to prevent liability and business disruptions from OSHA’s increased use of the General Duty Clause in 2016.
OSHA to Reduce Reliance on Permissible Exposure Limits
In a move that could drastically affect day to day operations at a large number of employers, OSHA has signaled in a new permissible exposure limit (PEL) request for information from industry and other stakeholders that it plans to “revoke a small number of obsolete PELs.” Though the rulemaking did not list the PELs OSHA is considering revoking, the revocation of any PELs opens the door for greater use of the General Duty Clause to regulate employee exposure through standards that are not generally industry standards such as NIOSH standards or ACGIH recommended exposure limits. Several commentators believe the PEL walk back is simply OSHA’s attempt to increase employer liability for more citations while avoiding formal rulemaking to establish PELs. Combined with higher fines to be implemented by August, 2016, this could be seen as a new revenue stream for OSHA.
New Silica Rule Expected to be Released by January 2017
Crystalline silica particles are commonly dispersed in the air when workers cut, grind, crush, or drill silica-containing materials such as concrete, masonry, tile and rock. OSHA estimates that 2.2 million American workers are regularly exposed to respirable silica, with 1.85 million of those workers in the construction industry. Other common sources of exposure are building products manufacturing, sandblasting and hydraulic fracturing (fracking) of oil and gas wells. Crystalline silica exposure can cause lung cancer, chronic obstructive pulmonary disease, and silicosis, an incurable and sometimes fatal lung disease.
OSHA has outlined a new Silica Rule as a top priority since the beginning of the Obama administration. The Agency sent a draft rule to the White House Office of Management and Budget (OMB) in February 2011, and has pledged to release a final rule by January 2017. (See the notice of proposed rulemaking at https://federalregister.gov/a/2013-20997). OSHA’s Silica Rule will establish permissible silica exposure limits for all workers at 50 micrograms per cubic meter of air, cutting allowable exposures in half in general industry and maritime businesses, and even more in construction. The proposed rule also includes preferred methods for controlling exposure—such as using water saws to reduce airborne silica dust. The rule will also require that employers conduct periodic air monitoring, limit workers’ access to areas where exposures are high, enforce effective methods for reducing exposures, provide medical exams for workers who have been exposed to elevated levels of silica and require training for workers about silica-related hazards.
Final Implementation of New Globally Harmonized System (GHS) Standards
OSHA adopted new HCS 2012 SDS standards on December 1, 2013. Chemical end users must come into compliance with the new SDSs passed down from up-stream suppliers and manufacturers by June 1, 2016. Employers should not simply swap in a new SDS for an old MSDS and throw away the old MSDS. Previous MSDSs should be kept on file for the following reasons.
• It should provide proof that an employer was compliant with old HazCom standard.
• The prior MSDSs can be useful evidence in defending against worker’s compensation claims by employees for occupational diseases alleged to have arisen from exposure to hazardous materials during the course of employment and
• The prior MSDS can be useful evidence in defending third party toxic tort claims alleged to have been caused by exposure to hazardous materials that the employer may have incorporated into products manufactured and sold by the employer or by products that are resold or distributed by the employer.
The new SDSs also presents an opportunity for employers to update their training, hazard communication and safety procedures for chemicals. The new SDS includes sixteen separate sections, some of which are similar or identical to the existing MSDS sections. There are, however, a number of significant changes and compliance challenges. When OSHA begins enforcement against employers on June 1, 2016, it will focus on whether the employer has reviewed the SDSs to identify any new risks as well as whether it has evaluated its existing compliance programs in light of the sixteen requirements in the new SDSs.
The Hazard Communication Standard affects nearly every employer, from chemical manufacturers to retailers to hotels whose employees work with cleaning agents. Employers need to be aware of their obligations to communicate hazards of chemical substance, and must have a process for updating existing labels, SDS, hazard assessments and training programs to comply with HCS 2012. Here are some best practices for employers to follow.
• Employers should review the new SDSs in a timely fashion upon receipt.
• If the employer does not receive the SDSs in a timely fashion, it should promptly communicate in writing with the manufacturer to obtain the SDSs. If the employer does not receive the SDSs by June 1, 2016, OSHA has indicated that it will not cite employers who show “good faith efforts” to obtain the SDSs.
• Employers should evaluate the workplace using the SDSs to identify hazardous chemicals and how their employees may be exposed.
• Employers whose employees work with or around hazardous chemicals must ensure that they review the updated SDSs and assess each of the employer’s underlying compliance programs (e.g., emergency action plan, storage of flammable and combustible materials, PPE, respiratory protection, etc.) that may be impacted by the SDSs.
• Employers should ensure that employees who work with or around hazardous chemicals are trained to recognize the pictograms and hazard warnings that will be required under the new Hazard Communication Standard. Employers should document this training and develop mechanisms to ensure that employees understand the hazards of working with or around hazardous chemicals.
Midnight Regulations and Interpretations
As with any outgoing administration, there is always the potential for “midnight regulations,” often implemented through rulemaking in the waning days of an Administration, particularly after an election. Though President Obama will not leave office until January 20, 2017, employers should prepare for last minute regulations or potential “executive orders” that may have lasting effects on employers. For example, under the Clinton administration, OSHA issued an ergonomics rule shortly after the 2000 election and Congress was forced to repeal the rule shortly after President Bush took office in January 2001. The likelihood of midnight regulation under President Obama depends heavily on which party wins the presidency in November 2016. To avoid potential political fallout for a new administration, OSHA will likely implement any new regulations as early as possible in 2016.
Midnight regulations are not the only potential consequence of an outgoing administration. New last minute interpretations of existing regulations and guidance could also have a significant impact on employers. While the Eighth Circuit’s ruling in Loren Cook Company, discussed above, may lessen the likelihood of drastic reinterpretations of rules, employers should still be on the lookout for changes in interpretation and implementation that may affect how companies do business.
The first seven years of the current Administration have been very challenging for employers under OSHA and other employment laws. 2016 may be the most challenging as the current Administration wants to project its agenda in the waning days of its authority. The President has said that in his last year he intends to “leave it all on the field” as to his agendas which means that employers must continue to be vigilant, keep informed and respond properly.