OSHA issues spring regulatory agenda

It’s that time of year again…when OSHA tells us what is on the horizon for rulemaking activity. Tressi L Cordaro at law firm Jackson Lewis comments.

On May 18, 2016 the spring semiannual regulatory agenda for federal agencies was published. This Regulatory Agenda provides a complete list of all regulatory actions that are under active consideration for promulgation, proposal, or review and covers regulatory actions for over 60 federal departments, agencies, and commissions.

The Regulatory Agenda for the Department of Labor includes a total of thirty two regulatory entries for OSHA specific actions. This is up from twenty three regulatory actions identified last year. The increase is due to more pre-rule stage regulatory actions that OSHA has identified where the agency is gathering relevant information.

In this year’s regulatory agenda there are nineteen regulatory actions in the pre-rule stage, which is up from seven pre-rule regulatory actions identified last year. Seven regulatory actions are in the proposed rule stage and six of these specific actions are in the final rule stage.

New to the regulatory agenda is Noise in Construction and Preventing Workplace Violence in Healthcare. For both of these initiatives OSHA anticipates issuing Requests for Information in November 2016.

Regarding noise in construction OSHA claims “Two recent studies of occupational hearing loss conducted by Department of Energy and National Institute for Occupational Safety and Health concluded that a significant percentage of construction workers have suffered from hearing loss over the duration of their careers.

It has been noted that construction work is excluded from the OSHA Hearing Conservation Amendment that is required for general industry work. Also existing construction noise requirements lack the specificity of a general hearing conservation program that must be implemented for general industry work.”

And for workplace violence in healthcare, OSHA states that the RFI will solicit “information primarily from health care employers, workers and other subject matter experts on impacts of violence, prevention strategies, and other information that will be useful to the Agency if it decides to move forward in rulemaking.

OSHA will also solicit information from stakeholders, including state officials, employers and workers, in the nine states that require certain health healthcare facilities to have some type of workplace violence prevention program.”

Combustible Dust and Communication Tower Safety remain in the pre-rule stage, with a goal of a SBREFA panel convening for Combustible Dust in October 2016. Crane Operator Qualifications in Construction and Beryllium continue to be in the proposed rule stage.

Last year OSHA added agency action for “Clarification of Employer’s Continuing Obligation to Make and Maintain Accurate Records of Each Recordable Injury and Illness,” which is meant to “clarify that the duty to make and maintain an accurate record of an injury or illness continues for as long as the employer must keep and make available records for the year in which the injury or illness occurred. The duty does not expire if the employer fails to create the necessary records when first required to do so.”

OSHA has identified this as regulatory action which is in the final rule stage and anticipates issuing a final rule in October 2016. This agency action is an attempt by OSHA to undo the holding in the U.S. Court of Appeals for the District of Columbia’s decision in the Volks case, which held that OSHA could not issue citations for failing to record an injury or illness beyond the six-month statute of limitations set out in the statute. AKM LLC d/b/a Volks Constructors v. Sec’y of Labor, 675 F.3d 752 (D.C. Cir. 2012).

For more details see Tressi L Cordaro’s blog.

The full federal Unified Agenda and Regulatory Plan can be found online at:

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