Health-Related Rulemakings Top OSHA Agenda

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By Bruce Rolfsen and Stephen Lee

May 19 — Protecting workers' health is the dominant theme of the updated OSHA rulemaking schedule released late May 18.

Of the six new rulemakings the Occupational Safety and Health Administration promised to initiate, five involve health issues including a long-sought measure to protect heath-care workers from workplace violence.

The regulatory agenda also revived OSHA's infection diseases rulemaking, a proposal that had been stalled on the agency's “long-term” agenda list since May 2015 (45 OSHR 540, 5/28/15).

“We are pleased that OSHA recognizes the importance of health standards,” Aaron Trippler, director of governmental affairs for the American Industrial Hygiene Association, told Bloomberg BNA May 19.

Trippler said that while the Obama administration wants to reflect an aggressive agenda, the reality is that it is likely that nothing more will happen before the term ends.

“They finalized silica and electronic reporting and I'm not sure there is time to do any more,” Trippler said.

Major Agenda Items Status Number Title Next Milestone Prior Milestone Date in Fall 2015 Agenda Prerule RIN: 1218-AC82 Process Safety Management and Prevention of Major Accidents Small Business Review (SBREFA), June SBREFA, April Proposed Rule RIN: 1218-AB76 Occupational Exposure to Beryllium Analyze Comments, June Analyze Comments, June Proposed Rule RIN: 1218-AC46 Infectious Diseases Notice of Proposed Rulemaking, March 2017 No Milestones Listed in Long-Term Agenda Final Rule RIN: 1218-AB80 Walking, Working Surfaces and Personal Fall Protection Systems Final Rule, August Final Rule, April Final Rule RIN: 1218-AC84 Clarification of Employer's Continuing Obligation to Make and Maintain Accurate Records of Each Recordable Injury and Illness Final Rule, October Analyze Comments, December 2015
Beat the Clock

Marc Freedman, executive director of labor law policy for the U.S. Chamber of Commerce, told Bloomberg BNA May 19, he was surprised to see the new rulemakings, considering the short time left for the Obama administration.

“They seem to be setting the table for a future administration,” Freedman said.

Peg Seminario, safety and health director at the AFL-CIO, said the agenda reflected two Obama administration goals: completing rulemakings already in the pipeline before the administration's clock runs out and laying the foundation for the next crop of worker safety rules.

“The next administration is going to have its own priorities, but hopefully having an agenda in place with some important regulations in process will help ensure that regulatory work continues without a pause,” Seminario told Bloomberg BNA May 19.

Health-Care Violence

Of the new rulemakings, the one with the most outside support is Preventing Workplace Violence in Health Care (RIN:1218-AD08).

On April 14, the Government Accountability Office released a report saying OSHA can take steps to deal with violent acts against health-care workers. At a news conference for the report's release, the ranking Democratic member of the House Committee on Education and the Workforce, Rep. Bobby Scott (D-Va.), said, “OSHA has the authority to issue an industry-specific standard, and this report highlights the need to take that action.”

Christine Pontus, director of safety and health for the Massachusetts Nurses Association, told Bloomberg BNA May 19 that OSHA now depends on the general duty clause of the Occupational Safety and Heath Act to cite employers for health-care violence problems.

A health-care rule would set specific requirements.

“Everybody would know what they had to do,” Pontus said.

New Agenda Items Status Number Rule Title Next Milestone Preule RIN: 1218-AD06 Noise in Construction Request for Information, November Prerule RIN: 1218-AD08 Preventing Workplace Violence in Health Care Request for Information, November Prerule RIN: 1218-AD09 Occupational Exposure to Styrene Request for Information, October Prerule RIN: 1218-AD10 Blood Lead Level for Medical Removal Advance Notice of Proposed Rulemaking, November Prerule RIN: 1218-AD11 Updating Requirements for the Selection, Fit Testing and Use of Hearing Protection Devices Advance Notice of Proposed September Proposed Rule RIN: 1218-AD07 Cranes and Derricks in Construction: Exemption Expansions for Railroad Roadway Work Notice of Proposed Rulemaking and Direct Final Rule, December
Get the Lead Out

The other new health-related rulemakings cover noise in construction (RIN:1218-AD06), styrene exposure (RIN:1218-AD06), stricter permissible blood lead levels for deciding when employees should be medically removed from their jobs (RIN:1218-AD10), and updating requirements for fitting and testing hearing protection equipment (RIN:1218-AD11).

In another health rulemaking, OSHA revived a dormant proposal for protecting workers from infectious diseases. The agency proposed the rule in 2010, citing concerns about tuberculosis, chickenpox, measles (rubeola), Severe Acute Respiratory Syndrome (SARS) and pandemic influenza.

A small businesses review was conducted in 2014. However in May 2015, the agency tabled the rulemaking. Since then, new concerns have been raised about adequately protecting workers from Ebola and Zika.

Recordkeeping

Beyond health issues, OSHA says it will issue in October its recordkeeping rulemaking (RIN:1218-AC84), enabling inspectors to issue citations for recordkeeping violations that initially occurred as long as five years prior.

Also, the working and walking surfaces fall prevention rule (RIN:1218-AB80) is projected to become final in August.

Neither rule has undergone a mandatory review by the White House's Office of Information and Regulatory Affairs.

Construction, Cranes

Three rulemakings focus on cranes.

Facing a goal of completing revisions to crane operator qualification requirements (RIN:1218-AC96) by November 2017, OSHA is now aiming to issue a notice of proposed rulemaking in December, having missed its previous March goal (45 OSHR 333, 4/2/15).

The other crane rules are amending and correcting the construction crane standard (RIN:1218-AC81), now set for a notice of proposed rulemaking in October following a missed April goal, and a new direct final rule to clarify how the crane rule covers railroad construction work (RIN:1218-AD07) that will settle a lawsuit railroad companies filed against OSHA (44 OSHR 871, 9/18/14).

To contact the reporter on this story: Bruce Rolfsen in Washington at brolfsen@bna.com and Stephen Lee in Washington at stephenlee@bna.com

To contact the editor responsible for this story: Larry Pearl at lpearl@bna.com.

For More Information

The complete Spring 2016 regulatory agenda is available at http://src.bna.com/e76.