By Eric J. Conn and Kathryn M. McMahon
In what can only be viewed as another example of OSHA’s inability to effectively advance its rulemaking agenda, OSHA recently withdrew from the Office of Management and Budget (OMB) review of its quarter-century-in-the-making draft Final Rule to update existing regulations aimed at preventing slips, trips and falls in the workplace. OMB’s Office of Information and Regulatory Affairs (OIRA), the White House gatekeeper for rules with significant economic impact, reported in late December that OSHA withdrew the rule from OIRA pending further consideration by the Agency. Unless a swift turnabout occurs and the rule is resubmitted to OIRA in the very near term, the rule will not be promulgated before the end of the Obama Administration.
The Walking-Working Surfaces and Personal Fall Protection Systems rule proposal, colloquially referred to as the “slips, trips and falls rule” proposal, was first issued in 1990. That is not a typo. The proposal has languished at OSHA for more than twenty-five years. Eventually, based at least in part on public comments submitted in response to the 1990 proposal, OSHA published a notice to reopen the rulemaking for a second round of public comment in May 2003. However, because advancements in fall protection technology had far outpaced OSHA’s rulemaking process, the Agency concluded that:
“the existing proposal was out of date and did not reflect current industry practice or technology.”
So more delays.
In May of 2010, OSHA issued a reiteration of the proposal, which, according to Agency officials, “reflected current information and increased consistency” with other OSHA standards. OSHA held administrative hearings in January of 2011 on the revised proposal, and this time, seemed as if it was actually making headway and would get the rule across the finish line.
OSHA noted in its most recent Regulatory Agenda published in November 2015:
“Slips, trips, and falls are among the leading causes of work-related injuries and fatalities.”
Throughout 2015, top Agency officials at OSHA and in the Department of Labor Solicitor’s office indicated that the rule was a top priority and OSHA was on the cusp of finalizing and promulgating a final rule designed to update the requirements to protect against falls in the workplace.
Then, only a month after listing the proposal as a high priority in the final stages of promulgation on its Regulatory Agenda, and in a move that surprised even those of us who have been keenly aware of the quagmire of the OSHA rulemaking process, OSHA halted the White House review process without explanation. While no official word has been issued as to what caused this abrupt turnabout, we speculate that OSHA, and all executive branch agencies, have been forced to make hard choices about which rules to advance in the remaining days of the Administration, and “slips, trips and falls” did not make the cut.
If OSHA, for instance, was given only a limited number of “slots” for rules to receive a green light from the White House before the end of the Term, thereby forcing OSHA to choose only a couple to advance, “slips, trips and falls” may have slipped and fallen from OSHA’s must do list. As important as fall protection is to Dr. Michaels, we know that promulgation of the Silica rule and the rule requiring electronic submission of injury and illness data are more important.
Ironically, the “slips, trips and falls” rule was one that likely would have sailed through White House review, and then been promulgated without legal challenge from industry or Labor. There is little controversy about the need for an updated rule bringing impacted regulations into the 21st Century, or at least the second half of the 20th Century. Nevertheless, OSHA seems to have chosen to prioritize Silica and recordkeeping data submission proposals, both of which are highly controversial, and, if promulgated, will undoubtedly see legal challenges from Industry, if they even make it through the White House OIRA review process during this Presidential Election year.
Stay tuned for word on whether “slips, trips and falls” will reappear in 2016 as a viable rule, or whether it will remain relegated to the bowels of 200 Constitution Avenue for another quarter century.