Looking Ahead: What to Expect from OSHA in 2013
On December 21, 2012, the Occupational Safety and Health Administration ("OSHA") published its 2012 Regulatory Agenda. Despite its title, the 2012 Regulatory Agenda outlines OSHA’s rulemaking plans for 2013. If OSHA sticks to its schedule, it will be a busy year for the agency and employers in the affected industries.
Below are some of the more significant issues that OSHA plans to address in 2013. We will provide more details on each of these agenda items as rules are published and changes occur throughout the year.
The following standards will be revised in 2013:
Electric Power Transmission and Distribution (March 2013)
In March 2013, OSHA plans to issue revisions to the general industry and construction standards for electric power generation, transmission, and distribution work and for electrical protective equipment. The proposed standards include revised minimum approach distance tables. Those tables limit how close an employee (or a conductive object he or she is contacting) may get to an energized circuit part. Additionally, OSHA will be revising other general industry requirements primarily affecting electric transmission and distribution work, including provisions on electrical protective equipment and foot protection. This rulemaking will also address fall protection in aerial lifts for work on power generation, transmission and distribution installations.
Reporting Workplace Injuries and Illnesses (May 2013)
In May 2013, OSHA will change two aspects of the OSHA recordkeeping and reporting requirements. First, it is revising the obligations of employers to report the occurrence of fatalities and certain injuries. The existing regulations require employers to report to OSHA (within 8 hours) any work-related incident resulting
in the death of an employee or the in-patient hospitalization of three or more employees. Under the proposed rule, employers are still required to report all work-related fatalities within 8 hours, but they will also be required to report all in-patient hospitalizations (regardless of the number of employees hospitalized) within 8 hours and all work-related amputations within 24 hours.
Second, OSHA is updating the list of industries that are partially exempt from the requirements to maintain a log of occupational injuries and illnesses, generally due to their relatively low rates of occupational injury and illness. The current list is based on the Standard Industrial Classification ("SIC") system, which is based on injury and illness data compiled by the Bureau of Labor Statistics ("BLS") for 1997, 1998 and 1999. Under the proposed rule, OSHA will update appendix A to subpart B of 29 CFR 1904 by replacing it with a list of industries based on the North American Industry Classification System ("NAICS"), which is based on data compiled in 2007, 2008, and 2009.
Confined Spaces in Construction (June 2013)
In June 2013, OSHA plans to issue a confined space standard pertaining to the construction industry that will mirror 29 CFR 1910.146, which covers employees who enter confined spaces while engaged in general industry work.
Slips, Trips, and Fall Prevention (August 2013)
In August 2013, OSHA plans to issue revisions to its standards that address slip, trip and fall hazards to include new technologies (including personal fall protection systems) and procedures that have become available to protect employees from these hazards. According to OSHA, the new rule is reorganized in a clearer, more logical manner and provides greater compliance flexibility. It also submits that the new rule is written in plain language to make it easier to understand, thereby facilitating compliance. Additionally, the rule is supposed to increase consistency between construction, maritime, and general industry standards, and eliminate duplication.
The following standards will be reviewed as part of the rulemaking process in 2013:
Proposed Combustible Dust Standard
OSHA has developed a combustible dust standard for general industry that is slated for review by the Small Business Regulatory Enforcement Fairness Act ("SBREFA") Panel (which determines the impact of the regulation on small businesses) in October 2013. The new standard is not likely to become law in 2013, so OSHA will continue to rely on the general duty clause to cite combustible dust hazards. OSHA’s general duty clause (found in Section 5(a)(l) of the Occupational Safety and Health Act of 1970) requires employers to furnish a workplace that is free from recognized hazards that are likely to cause death or serious bodily harm.
Injury and Illness Prevention Program
OSHA is developing a rule requiring employers to implement an Injury and Illness Prevention Program to find and address workplace hazards that may not be addressed by existing regulations. The rule has been in the works for almost three years, and despite OSHA’s regulatory agenda projecting that a notice of proposed rulemaking will be published by December 2013, the likelihood of OSHA meeting that deadline is slim.
Review/Lookback of OSHA Chemical Standards
OSHA plans to conduct a Regulatory Review and Lookback effort in May 2013 to help it update many chemical specific Permissible Exposure Limits ("PELs"). Most of the existing PELs were adopted in 1971, under section 6(a) of the OSH Act, and only a few have been updated since. OSHA plans to revise its outdated PELs in order to take into account newer scientific data that indicates that significant occupational health risks exist at levels below OSHA’s current PELs. Thus, in May, OSHA plans to issue a Request for Information ("RFI") seeking input from the public to help the Agency identify effective ways to address occupational exposure to chemicals.
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