United States: Important OSHA Activity In 2012, And What To Look For In 2013

The Occupational Safety and Health Administration (OSHA) frequently has been criticized for inefficiency and a slow rulemaking process. During 2012, these criticisms were magnified, as many rules that were expected during the year have yet to be finalized. Many speculate the slow rulemaking in 2012 was a result of election-year politics. Despite the criticism, however, OSHA continued development of a number of notable initiatives, such as strengthening its whistleblower protection program and focusing upon the administration's enforcement programs. This article provides a summary of some of this activity in 2012, and offers a preview of OSHA activity employers should look for in 2013.

A LOOK BACK AT OSHA'S 2012 ACTIVITIES

Whistleblower Protections

One of the most significant changes to OSHA in 2012, and which will no doubt carry into 2013, is the agency's emphasis on strengthening its whistleblower program. Assistant Secretary of Labor, Dr. David Michaels, announced new measures to address concerns regarding training, accountability and transparency in the whistleblower program. As of March 1, 2012, the whistleblower program was restructured to require officials with the program to report directly to OSHA's Office of the Assistant Secretary instead of the director of OSHA's enforcement programs. Moreover, OSHA's 2013 budget request includes a proposal for an additional $4.8 million and 37 employees to be added to the whistleblower program in an effort to address backlogs and increasing caseloads. OSHA's focus on its whistleblower protection program indicates that employers should ensure they have adequate procedures in place to protect employees who report unsafe practices.

Unlawful Discrimination

In a March 2012 memorandum, OSHA highlighted problematic employment policies that provide employees with an incentive not to report injuries, e.g., entering employees who have not been injured in the previous year into a drawing to win a prize. Withholding incentives from workers who report injuries may unlawfully discriminate against them for exercising their right to report an injury. A better way to encourage safety in the workplace would be incentives that promote worker participation in safety-related activities, such as identifying hazards or participating in investigations. The memorandum also contained a warning for employers who discipline employees injured on the job. For example, some employers will discipline an injured employee for failing to properly report an injury, or for getting injured as a result of violating a safety rule. OSHA encourages employers to carefully scrutinize such decisions because they too may be considered discriminatory.

Enforcement

OSHA has recently emphasized its enforcement initiatives. Seventy-five percent of OSHA's inspections in the 2012 fiscal year resulted in citations, and the percentage of inspections resulting from complaints has steadily increased over the last few years. As further evidence of increased enforcement efforts, OSHA amended the criteria for employer inclusion in the Site-Specific Targeting Program, which targets for inspection those general industry workplaces with higher-than-average injury and illness rates. Previously, the program only included those workplaces with a minimum of 40 workers; however, in 2012 that number was reduced to 20 workers. Moreover, in 2012, the number of employers on OSHA's "severe violators list" doubled since the inception of the list in 2010. Placement on the severe violators list will subject an employer to more frequent OSHA inspections and requires establishment of a safety program.

WHAT EMPLOYERS SHOULD EXPECT FOR 2013

Revisions to Injury and Illness Reporting and Recording Requirements

In an effort to update its reporting system, OSHA proposes to move from the Standard Industrial Classification system (SIC) to the North American Industry Classification System (NAICS). NAICS is the standard system used by federal statistical agencies in classifying business establishments. OSHA indicates that most industries will be unaffected by this change, although some establishments will be newly required to report, or newly exempt from reporting. In addition, OSHA has proposed requiring employers to report all work-related in-patient hospitalizations within eight hours, and all work-related amputations within 24 hours. Currently, employers are only required to report incidents in which three or more workers are hospitalized. OSHA has also included in its 2013 budget a $1.75 million allotment for updating its data collection system to permit employers to file injury and illness information electronically. Each of these proposed changes has been under review for at least a year, so a 2013 implementation is a possibility.

I2P2

An injury and illness prevention program, or I2P2, would require employers to find and fix workplace hazards before injury, illness or death occurs, even if the hazard is not covered by any particular OSHA standard. The proposed program has met with much opposition because of the enhanced burden it would place upon employers. Although many experts doubt that OSHA will be able to implement such a program, the re-election of President Obama puts an I2P2 rule in a better position to be adopted in 2013. Thus, employers may want to begin preparing themselves now.

Other Forthcoming Notable, Industry-Specific Rules

Looking forward, three regulations slated for 2012 have yet to come to fruition, so employers should look for them in 2013. A final rule to protect construction workers in confined spaces was proposed for June 2012, but has not been released. In June 2012, an OSHA official said the confined space rule was "really close" to being issued. OSHA also proposed a May 2012 date for a final rule regarding electric power generation and transmission, which would make the construction standard consistent with the general industry standard addressing the maintenance and repair of electric power lines and equipment. Finally, a proposed silica exposure standard has been under review since February 2011. The proposed standard would lower permissible exposure limits to silica dust and set new requirements regarding issues such as regulated work areas and engineering controls.

CONCLUSION

Many speculate that the 2012 election year temporarily derailed a number of OSHA's initiatives. Now that the election is over, it is possible OSHA may move more quickly with some of these outstanding goals. Moreover, employers should certainly expect a continuation of the trend toward increased enforcement initiatives and whistleblower protections under a re-elected Obama administration.

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