ARA: The impact of the elections on OSHA regulations

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Michael Kennedy, ARA Public Policy CounselMichael Kennedy, ARA Public Policy Counsel This article is written in October as we wait for Election Day. The future direction of the Occupational Safety and Health Administration (OSHA) is at a political tug of war. If President Obama wins a second term, retailers should expect a more active OSHA from a regulatory perspective, as many rules impacting the agricultural sector are poised to be published in either proposed or final form after the election. And as always, employers could expect to see the same level of active OSHA enforcement.

If Gov. Romney wins the election, some of the current regulatory initiatives may be stunted or even scrapped, but some undoubtedly will be proposed or finalized. Enforcement should continue at high levels, although some of the Obama administration’s procedures and targeting programs likely would be changed. Whether you will see a “business-friendly” OSHA, is still speculative.

Although it is difficult to predict exactly how OSHA will proceed in 2013, the following are potential significant initiatives of interest to ARA members. 

REGULATORY ACTIONS SET ASSAIL

During the last several years, OSHA has been hard at work on several rulemakings yet to be released, but primed to move forward—all of which could have significant consequences for employers.

Hazard Communication Final Rule

Retailers must ensure they are in full compliance with the one major final rule OSHA implemented in 2012: an update of the hazard communication standard to align it with the Globally Harmonized System of Classification and Labeling of Chemicals (GHS). The GHS final rule primarily affects three aspects of the current hazard communication standard. The first and second most directly affect chemical manufacturers. The third significantly impacts any U.S. employer that uses hazardous chemicals in the workplace, including retailers. By December 2013, retailers covered by the hazard communication standard must have trained employees on the new hazard classifications, labels and safety data sheets required by the revised standard. ARA met with OSHA in October and agreed to continue to partner with them to help assist in GHS implementation.

Injury and Illness Prevention Program (IIPP or I2P2)

OSHA’s I2P2 rule is a top regulatory priority that has been in development for almost three years. During the last several months, OSHA hinted it is ready to begin the Small Business Regulatory Enforcement Fairness Act process for the rule, whereby the agency would solicit input on the rule from affected small business entities. (However, OSHA has moved slowly in this process.) It is still unclear what an IIPP rule will look like because OSHA faces the challenge of creating mandatory requirements that can be applied to employers of all sizes and in all industries. It is clear that OSHA will not release the rule before the election, but retailers should stay tuned on this agency priority.

Sterner injury and illness reporting obligations

OSHA has proposed requiring employers to report workplace amputations to the agency within 24 hours, as well as all in-patient hospitalizations within eight hours. Existing recordkeeping rules require employers to report in-patient hospitalizations of three or more employees to OSHA within eight hours. Any workplace fatality would continue to be reportable as well. With this proposal, OSHA is following the actions of many states that have adopted more stringent reporting requirements for amputations and in-patient hospitalizations. If President Obama wins a second term, ARA should expect this rule to be finalized and docked in the near term.

NEW INITIATIVES

Outside of the regulatory arena, OSHA remains busy with new initiatives aimed at improving compliance in the areas of heat illness and falls.

In 2012, OSHA launched a nationwide outreach campaign to raise awareness among workers and employers about the hazards of working outdoors in hot weather by creating a webpage (www.osha.gov/SLTC/heatillness ) devoted exclusively to work-related heat illness. While OSHA does not have a standard that deals directly with heat stress, it could utilize the General Duty Clause of the Occupational Safety and Health Act of 1970 to cite employers for failing to take adequate steps to protect employees from heat illness. Employers should review their policies and practices to ensure they have plans in place to deal with heat stress at their worksites.

Similarly, OSHA recently launched a nationwide campaign to prevent falls. OSHA is keen to look at retailers that load and unload rail. On its website, OSHA provides educational materials on how to prevent falls, train employees and plan jobs safely. Fall hazards are also a major focus of enforcement in the construction industry. It is incumbent upon construction employers to ensure full compliance with OSHA’s standards related to fall protection.

ARA assumes that no matter who wins the election, enforcement will continue to be a priority for OSHA. The agricultural industry is, and will remain, under the agency’s enforcement microscope.

For more information, contact Michael Kennedy at Michael@aradc.org.


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