While it is difficult to predict exactly how OSHA will proceed in 2016, there are a number of changes in the regulatory arena as well as new initiatives that are important guides for employers:
- Significant increase in fines
For the first time in a quarter of a century, OSHA can increase the maximum penalty amounts it imposes on employers that violate occupational safety and health standards under a provision in the Bipartisan Budget Act signed into law November 2, 2015.
The Act requires OSHA to implement the new maximum penalties in two phases:
- An initial catch-up adjustment; and
- An ongoing subsequent adjustment period
The one-time catch-up will increase penalties to reflect the changes in inflation from 1990 – 2015. Current estimates using October 1990 to September 2015 CPI data (the latest data available) suggest a nearly 80% increase in fines for 2016. This adjustment will take effect no later than August 1, 2016. Thereafter, employers should expect fine increases by January 15th of every year as the agency makes adjustments based on the annual percentage increase in the CPI. The law does, however, cap the penalty increase at 150%.
For willful and repeat citations, the maximum possible penalty will increase from $70,000 to around $127,000 in 2016. For serious citations, the increase in the maximum possible penalty is from $7,000 to around $12,600.
- More rapid response investigations
The reporting requirements that went into effect January 1, 2015 have led to 200 to 250 new reports each week on top of the roughly 40 reports OSHA already received under continuing rules – 55% of these resulted in rapid response investigations, 38% in on-site inspections. In a rapid response investigation, OSHA contacts and instructs the reporting employer to investigate the root cause of the incident, determine how to prevent similar incidents from happening in the future, and report these findings back in about a week. If OSHA is dissatisfied with an employer’s response, it will proceed to conduct its own inspection. Investigations that are thorough, involve management and employees, continually ask “why?” until the underlying cause is identified, do not place blame, and focus on the most effective solutions are most likely to satisfy OSHA.
- More inspections related to process safety management, chemical exposures, ergonomics, and workplace violence
In October, OSHA chief Dr. Michaels published an article, “A Better Way to Plan for Safety and Health Inspections” indicating that all inspections are not created equal, specifically noting the inspection of an oil refinery or a chemical manufacturing facility is more complex and time-consuming than one of a trenching site. “Those complex inspections make a big difference – showing employers, and the whole country, that we are determined to investigate serious hazards regardless of how complex or challenging those inspections may be.”
The new protocol gives added weight to complex inspections by using “Enforcement Units,” allowing enforcement personnel to take on complicated inspections without worrying about whether they are meeting goals for individual inspections. Routine inspections count as one “Enforcement Unit,” while those requiring greater resources – such as those involving musculoskeletal disorders, chemical exposures, workplace violence, and process safety management violations – count anywhere from two to eight units. Employers should expect the number of process safety management compliance inspections at oil refineries and chemical plants, as well as inspections involving workplace violence and ergonomics, to increase.
- Focus on HazCom compliance
Hazard Communication standard violations are always high on OSHA’s most frequently cited standard list (they were number two in FY 2015). But with the end of the rollout of the new GHS Hazard Communication standard nearing, and all of the major compliance obligations (e.g., new labeling requirements, new form Safety Data Sheets, updated written programs and training) in place or due within the next year, expect a real focus on HazCom compliance. Past citations indicate that OSHA will focus on deficiencies in the written program, training both on the program and on hazard chemicals (for both employees and temporary workers), developing and maintaining Safety Data Sheets, and proper labeling.
- Be alert: possible regulations and initiatives
With limited time remaining under the Obama administration, possible priorities include:
- Recordkeeping: frequent submission of injury data. This controversial proposal was first proposed in November 2013 and met with significant opposition from a variety of stakeholders. However, OSHA has advanced the rule to the final stage of the rulemaking process and it is now under review by the Office of Management and Budget (OMB).This proposed rule would require many employers to electronically submit their injury-and-illness logs (in many instances, detailed incident reports also) to OSHA on a regular and frequent basis, as often as quarterly for large employers. To the dismay of many, OSHA also intends to publish employers’ injury data and incident reports online.
- Recordkeeping: injury is an “ongoing obligation.” OSHA published a Notice of Proposed Rulemaking in the July 29 Federal Register that clarifies an employer’s continuing obligation to make and maintain an accurate record of each recordable injury and illness throughout the five-year period during which the employer is required to keep the records. This, in effect, is a work around a court ruling barring OSHA from citing an employer past a six-month statute of limitations.
- Silica and Beryllium. OSHA issued a proposed rule on silica two years ago and the standard has faced strong opposition from some industry and employer groups, but remains a top priority under the Obama administration. The proposal to strengthen the beryllium rule has more of a consensus and is less controversial.
- Combustible dust. While the consensus is that OSHA is unlikely to issue a rule on combustible dust in 2016, industry leaders are concerned that OSHA will use the Hazards Communication Standard or NFPA consensus standards or permissible exposure limits to cite employers for combustible dust.
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