A look ahead at OSHA regulation and enforcement

Editor’s Note: This article is an edited version of a keynote address presented by Eric Hobbs, shareholder with Ogletree, Deakins, Nash, Smoak & Stewart, at FMA’s 15th Annual Safety Conference, held May 9-10, 2023, in Elgin, Ill.

In the last three years, so much has happened in the realm of safety regulation. A new Occupational Safety and Health Administration (OSHA) has emerged with many new compliance officers and area directors—as well as new directions in regulation and enforcement.

The Return of Public Shaming

OSHA has practiced what has become known as public shaming. Employers are cited, sometimes under rather nasty circumstances, and then blamed in press releases for whatever happened, long before there’s any ruling on the citation. They often speak of repeated negligence and accuse employers of causing worker injury or death, but without any substantiated proof.

Of course, not all citations survive the litigation process. Attorneys often can prove that OSHA’s wrong in what it alleges.

The Department of Labor issued an internal directive in 2020 calling for an end to this practice. It specifies that OSHA can issue this type of press release only after a court has rendered a judgement, after a conviction or plea agreement has been obtained, after a settlement or conciliation agreement with the employer, or after the time for contesting a finding has elapsed.

That directive is still in effect, but it’s not being followed. While directives don’t have the force of law, they are supposed to give us an indication of how OSHA will work.

Expanded Electronic Reporting

In 2016, OSHA published a final rule titled “Improve Tracking of Workplace Injuries and Illnesses” that calls for increased electronic reporting through employer submission of 300 logs. Companies with more than 250 employees were required to file all 300, 301, and 300A logs electronically each year, while smaller companies in certain NAICS codes had to submit 300A logs only.

However, at the time, OSHA did not have the personnel or software capacity to take in all those data points and synthesize them. They were hauling in all this data, but it sat untouched.

In 2019, the Trump administration called for an amendment to the rule, but litigation held up the amendment until after the administration was out of office. Then in March 2022, OSHA proposed a new rule, which is basically the 2016 rule with a few changes. It requires employers in high-hazard industries with 100 or more employees to e-file all 300, 301, and 300A logs annually, and for employers in high-hazard industries with 21 to 99 employees to file only 300A logs each year.

But since the comment period closed in June 2022, the public has heard nothing from OSHA. This is not uncommon when within the agency there's some dispute as to what the next step should be, so it could be an indication that someone within the agency is asking for reconsideration of the rule. However, final OSHA rules typically look a lot like what was proposed.

Heat Illness Standard

One of the top regulatory priorities for OSHA is to establish a heat illness standard.

Coming up with a new standard is extremely labor intensive—the average time for a standard to be published and come to final form is eight years. So while OSHA has indicated that the heat illness regulation will be published by the end of 2023, that seems highly unlikely.

In the meantime, OSHA established a National Emphasis Program (NEP) in April 2022 to address heat illness concerns. NEPs allow OSHA to focus its limited resources in a certain area. If the agency crafts the programs constitutionally, it can conduct more lawful inspections of a narrower group of employers than it could without them.

NEPs identify a hazard and establish that there is an elevated likelihood a particular hazard exists within a certain industry. OSHA then can target a random selection of members in that industry for inspection, and that randomness stands up to constitutional challenge. And arguably, occupational safety and health is advanced through programs like these.

The heat illness NEP targets specific industries, such as iron and steel mills, construction, and chemical factories, when the National Weather Service has declared a heat wave and when employees are working indoors near radiant heat sources. It focuses on workplaces where the heat index, which is a combination of heat and humidity, is 80% or greater.

The NEP allows for unprogrammed inspection if a hazardous heat condition is recorded on an OSHA 300 log or 301 incident report, or if an employee raises a heat-related issue to a compliance officer. The compliance officer then will assess whether the employer:

• Provides accessible cool water to employees at all times.
• Has a written heat illness and injury program and has trained employees how to stay safe.
• Monitors ambient temperatures and levels of work exertion.
• Offers scheduled rest and hydration breaks.
• Provides time for acclimatization of new and returning employees.

It will be very difficult for OSHA to publish a standard that will survive litigation, because there’s no way to define excessive heat. By definition, excessive is a relative term, and much of the effect of heat on a person depends on that person’s characteristics, such as age and physical fitness.

Infectious Disease

Infectious disease has been on OSHA’s regulatory agenda since 2017. At that time, the agency went to great lengths to gather information, holding stakeholder meetings and convening small business panels to vet the proposal. But it wasn’t until August 2022 that OSHA announced a notice of proposed rulemaking, with a publication date for this standard of March 2023.

The public is still waiting for the final publication of this standard, although it is definitely needed. In the past with the swine flu, OSHA had no idea what to do about it. So of course, when the COVID-19 pandemic arrived, it was even worse. Directions to employers were changing constantly, with new requirements coming before companies could comply with the previous ones. Without a standard that addresses these types of infectious disease outbreaks, employers don’t know how to proceed.

At this point, the standard likely will cover all industries and include not just flu and COVID-19, but also tuberculosis, chicken pox, measles, and other such diseases. With such a broad scope, having to take into account every kind of work setting and so many types of diseases, this standard could take a while to complete. And with COVID-19 NEP having expired, heat illness will remain the top priority.

Other OSHA Priorities

Twice a year, OSHA publishes its agenda, which lists its current priorities. Following are some of the items included on the fall 2022 list.

A clarification of lockout/tagout has been promised for a long time. Published in 1989, this standard needs to be brought up to speed with the exponential developments in technology that have occurred since then.

The standard on walking-working surfaces was published a few years ago after OSHA worked on it for 19 years. The agency has realized the standard has a few glitches, so it is in the process of making necessary changes.

Personal protective equipment in construction is on the agenda as well, mainly to put more of an emphasis on the fit of PPE. This has not been a focus previously, but with an increasing number of females working in construction, it’s becoming apparent that the PPE isn’t built for the female body. When PPE doesn’t fit, it doesn’t work, and that’s very dangerous.

The blood level for medical removal under the lead standard goes back many decades. Anyone with that high a level of lead in their blood is likely to be very sick if not removed from exposure. Everyone agrees the acceptable blood level number needs to be reduced substantially. Thankfully, industrial companies have lowered that number themselves to ensure their people stay safe.

The General Duty Clause

Remember that even if OSHA does not have a standard or NEP addressing a certain hazard, it can fall back on the General Duty Clause of the OSHA Act. This clause says that employers, outside of any requirement under an OSHA standard, have to provide a safe place of employment for all their employees.

So, if employers are aware of any hazard in their workplace, even those not regulated by an OSHA standard, they must take steps to protect their employees.