In the final days (and even hours) of the Obama Administration, OSHA promulgated several significant regulatory changes. For example, after several decades, it updated the Walking Working Surfaces Standard (the regulation covering slips, trips and falls). It also published a controversial Electronic Injury Data Submission Rule, two new occupational health exposure standards for silica and beryllium, and brought the U.S. Hazard Communication Standard (the chemical right-to-know regulation) more in line with the United Nation’s Globally Harmonized System of Classification and Labeling of Chemicals. To name a few.
But, as a new administration took the reigns at the Department of Labor, many wondered what would be the fate of these “midnight rules”? While many agency regulations have been subject to additional rulemaking (or even rule-rescinding), as expected given Pres. Trump’s promise for deregulation, others have remained untouched. This webinar will review the status of these OSHA Rules and where they may be headed.
We are now two years into the Trump Administration, and we have seen a mixed bag of changes in the OSHA enforcement and regulatory landscape. We have watched some late Obama-era OSHA rules get repealed by the Congressional Review Act or delayed and amended through deregulatory rulemaking. We have seen some efforts to boost up the VPP Program and other cooperative programs—the sorts of policy shifts at OSHA many expect in a transition to a republican administration. However, we have also been surprised by OSHA increasing the number of inspections, setting records for the number of $100K+ enforcement actions, and continuing to issue hard hitting press releases. And most surprising of all, OSHA still does not have a Senate-approved Assistant Secretary—the longest ever wait for a permanent OSHA Administrator.
As we move into the out years of Pres. Trump’s first term, we expect more reshuffling of OSHA’s enforcement priorities and policies, and more surprises, so it is critical to stay abreast of OSHA developments. This complimentary 2019 OSHA Webinar Series, presented by the OSHA-specialist attorneys inConn Maciel Carey’s national OSHA Practice Group, is designed to give employers insight into changes and developments at OSHA during this unpredictable time.
Slips, trips and falls are among the leading causes of work-related injuries and fatalities in the U.S., and continue to pose problems for all employers. In November 2016, OSHA published its updated Walking / Working Surfaces (WWS) Standard, the regulation that governs slips, trips and fall hazards in general industry, after decades of attempts to amend the Rule. The Final Rule was intended to modernize and harmonize OSHA’s various regulations focused on fall hazards, based on advances in fall protection technologies and methods, and lessons learned over the decades.
Now, just over a year since the new WWS Rule has gone into effect, many questions remain for employers with respect to modifying workplace practices and physical installations, especially those related to fall protection, fixed ladders, and scaffolding.
The Trump Administration has taken the reins at OSHA, and the first year of the new OSHA’s enforcement and regulatory (or de-regulatory) agenda is in the books. We have already seen significant changes in the way OSHA does business and the tools available to the Agency in its toolkit. Now, as the new Administration finishes filling out the OSHA leadership team with its own appointees, we are sure to see shifting of enforcement priorities, budgets and policies, and an amplified effort to repeal or re-interpret controversial Obama-era OSHA rules and policies. Accordingly, it is critical to stay abreast of OSHA developments.
On January 17, 2017, OSHA’s new Walking-Working Surfaces Rule took effect, updating OSHA regulations that have been in place for nearly a half century. OSHA’s new rule, commonly referred to as the “Slips, Trips and Falls” rule, actually revises and updates two historic OSHA standards — the Walking-Working Surfaces regulations at Subpart D and the Personal Fall Protection regulations at Subpart I of OSHA’s General Industry Standards (29 C.F.R. Part 1910). Begun in 1990, it took OSHA all of 27-years – longer than it takes the Agency to promulgate its comprehensive health standards, which is saying quite a bit. But just shy of two months to the end of the Obama Administration, the rule was promulgated, and became effective and enforceable three days prior to the Inauguration of Pres. Donald Trump.
While the new rule may fall prey to to efforts by the Trump Administration to stay and roll back those rules promulgated in the 11th hour by the Obama Administration — of which this certainly is one — it seems to have avoided the full scale assault by industry legal challenges typical of new OSHA rules. The period to file legal challenges to the rule ended two weeks ago, and a survey of court filings indicates that only two parties have filed challenges to the rule, and these challenges are narrowly focused on a few discreet provisions of the rule, relating to the 300-foot limit on the use of rope descents and the restrictions on chimney sweeps who climb carrying their hook ladders. Thus, even if these challenges are upheld, the bulk of OSHA’s revised Walking Working Surfaces rule will remain secure and in place.
Significant Provisions of the New Standard
It is not surprising that the new rule by and large escaped industry legal challenge. For the most part, it incorporates existing advances in technology and current national consensus standards and/or industry best practices already in place in a wide swath of impacted industries into the regulatory structure. Further, in particular in the area of personal fall protection, the new rule adds flexibility to the old requirements by expanding allowable methods for compliance. For instance, the new rule allows employers to rely on fall protection systems rather than relying exclusively on guardrails and physical barriers in many situations.
However, the new rule does impose some new requirements it is important to be aware of and understand. Continue reading →
Only a few decades in the making, OSHA has finally updated its Walking / Working Surfaces Standard, the regulation that governs slips, trips and fall hazards in general industry. Slips, trips and falls are among the leading causes of work-related injuries and fatalities in the U.S. The new final rule attempts to modernize OSHA’s regulations to prevent fall hazards based on advances in fall protection technologies and methods.
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. Continue reading →
As we wind down the year and head into the waning days of the Obama Administration, we look with interest at the Administration’s latest, and likely final, Semi-Annual Regulatory Agenda, published November 20th.
If one were a jaded OSHA defense lawyer like me, the thought that publication of the Agency’s list of regulatory priorities and planned rulemaking activities on the eve of the Thanksgiving holiday, when most of the country is focused on family, preparing a Thanksgiving feast, and gearing up for some good football, might have been intentional. “Maybe they won’t notice?” Well, we did, and we thought it would be useful for our readers to have a summary of OSHA’s final priorities in the regulatory arena as the Obama Administration focuses on legacy, and what they would like to accomplish before Secretary Perez and Assistant Secretary for OSHA David Michaels turn out the lights next year at 200 Constitution Avenue.
“So many workplace injuries, illnesses and fatalities are preventable. They not only put workers in harm’s way, they jeopardize their economic security, often forcing families out of the middle class and into poverty. The Department’s safety and health regulatory proposals are based on the responsibility of employers to provide workers with workplaces that do not threaten their safety or health and we reject the false choice between worker safety and economic growth. Our efforts will both save lives and improve employers’ bottom lines.”
One note about OSHA’s robust list of planned regulatory activity for 2016 — and an apt idiom for an analysis of the Thanksgiving Regulatory Agenda — OSHA’s eyes are too big for its stomach. While the Agency’s plans look ambitious and aggressive, if history is a guide, the cumbersome rulemaking machinery will prevent much of these plans from coming to fruition, especially in the final few months before the presidential election. Unless 2016 is an exception, this means there really are only a few productive months remaining for OSHA to accomplish some subset of its long list of priority actions. Looking at the roadblocks Dr. Michaels has already faced in the regulatory arena throughout his term – some of which came from the White House itself – it is unlikely OSHA will accomplish much of what appears in its final Regulatory Agenda.
Notwithstanding, it is important to understand the Agency’s rulemaking plans for numerous reasons, the most important of which is that you can count on the fact that Dr. Michaels’ last priorities will become the first priorities of the next Administration, should a Democrat again take the White House.