Spring Regulatory Agenda Blooms with Initiatives
It may be summer now, but the federal government published its “Spring 2022” Regulatory Agenda just before the Summer Solstice. It is full of NLRB, OSHA/MSHA initiatives moving forward after languishing for years, and in some cases restoring rules that had been weakened during the prior administration.
For example, the National Labor Relations Board includes on its new agenda a Notice of Proposed Rulemaking (NPRM), due next month, to revise the “Joint Employer” standard used to determine whether two employers (as defined in Section 2(2) of the National Labor Relations Act) are a “joint employer” under the Act. The Trump administration had issued a final rule making it tougher to “connect the dots” between franchiser/franchisee, chain operations, parent/subsidiary/affiliates and even temporary agency/host employers. The Trump rule was invalidated in 2020, prior to the elections, by a U.S. District Court, and was subsequently rescinded under Biden. This leaves a regulatory void, however, which this rulemaking will fill.
Given the Memorandum of Understanding between the US Department of Labor (DOL) and the NLRB (signed in January 2022 to facilitate cooperation in protecting worker safety and rights), any definitional changes adopted by NLRB will likely be used by OSHA/MSHA as well. This may impact which companies are considered when a corporate history is reviewed for “repeat violation” purposes (same or similar violation at the same or other company location within previous five years), and those violations now carry a penalty of up to $145,027. It also could impact the scope of any future corporate-wide settlement agreements, including adoption of abatement requirements. Another NLRB agenda item calls for a NPRM on the issue of representation election procedures under 29 CFR Part 103, due in September 2022.
Over at the DOL, MSHA’s regulatory agenda primarily focuses on two significant items: a final rule requiring Safety Programs for Surface Mobile Equipment (due October 2022), and a NPRM for Respirable Crystalline Silica (due September 2022). The silica rule is a wild card in that MSHA currently does not credit PPE such as respirators as a control, making adoption of OSHA’s “Table One” in its analogous construction rule difficult. The current MSHA permissible exposure limit is the equivalent of 100 ug/m3, twice the level allowed by OSHA under its 2016 rule.
MSHA has concurrently launched two enforcement initiatives associated with these regulatory actions. The “Enhanced Enforcement Program” targets task training, site-specific hazard training for contractors and customer truck drivers, as well as five equipment standards (failure to maintain control, seatbelts, brakes, chocking of mobile equipment parked on a grade, and pre-operational inspection of mobile equipment). Any citations issued under this initiative will be considered for special assessment of up to $291,234 per violation. In early June, MSHA also announced a silica enforcement program, targeting mines with histories of overexposures or MSHA citations for silica violations. The agency added that Section 104(b) withdrawal orders will be issued if silica citations are not timely abated.
OSHA’s regulatory agenda is quite robust, with the updated items of most interest summarized below:
There are 5 measures at the “prerule” stage:
Process safety management and prevention of major chemical accidents (stakeholder meeting planned 7/22)
Mechanical Power Presses Update (no date for further action – analyzing comments from RFI)
Prevention of Workplace Violence (health care and social assistance sectors only at this time; SBREFA to be initiated 9/22)
Blood Lead Level for Medical Removal Update (scheduled to be released in June 2022)
Heat Illness Prevention in Outdoor and Indoor Work Settings (comments closed 1/26/22 – no date for NRPM)
There are 15 initiatives at the proposed rule (NPRM) stage:
Infectious Diseases (NPRM due 5/23; would cover health care and “other high-risk environments” including laboratories; addresses all types of non-bloodborne infectious diseases, including COVID-19, MRSA, TB, shingles)
Amendments to Crane/Derricks Standard (NPRM 1/23; proposed amendments would: correct references to power line voltage for direct current (DC) voltages as well as alternating current (AC) voltages; broaden the exclusion for forklifts carrying loads under the forks from "winch or hook" to a "winch and boom"; clarify an exclusion for work activities by articulating cranes; provide four definitions inadvertently omitted in the final standard; replace "minimum approach distance" with "minimum clearance distance" throughout to remove ambiguity; clarify the use of demarcated boundaries for work near power lines; correct an error permitting body belts to be used as a personal fall arrest system rather than a personal fall restraint system; replace the verb "must" with "may" used in error in several provisions; correct an error in a caption on standard hand signals; and resolve an issue of "NRTL-approved" safety equipment)
Shipyard Fall Protection – Scaffolds, Ladders & Other Working Surfaces (NPRM 12/22)
Communication Tower Safety (NPRM 3/23)
Emergency Response (NPRM 5/23)
Lockout/Tag-Out Update (NPRM due 3/23, to allow for new LOTO technology)
Tree Care Standard (NPRM due 12/22)
Welding in Construction Confined Spaces (NPRM due 2/23; rule will eliminate ambiguity about the definition of confined space that applies to welding activities in construction)
PPE in Construction (NPRM due 9/22; would clarify issues of PPE fit for construction workers)
Powered Industrial Truck Design Standard Update (would incorporate most recent editions of B56.1, B56.5 and B56.6, updating from outdated version of B56.1; comments closed 5/17/22)
Walking Working Surfaces (technical corrections – will reopen rulemaking record 10/22)
Occupational Exposure to Crystalline Silica (NPRM due 5/23 to address court-ordered review of whether to include medical removal protection)
Improve Tracking of Workplace Injuries & Illnesses (update to e-Recordkeeping rule to expand data submission requirements – comments close 6/30/22 and final rule due 12/22)
Massachusetts State and Local Government Only State Plan (to cover public sector workers using state resources – private sector remains under federal OSHA)
Arizona State Plan for OSH (federal OSHA is considering revoking AZ’s state plan status)
The following are at the final rule stage:
Update to the Hazard Communication Standard (due 12/22; adopting 7th Rev. to GHS)
Procedures for handing retaliation complaints under Taxpayer First Act, the Anti-Money Laundering Act, and the Criminal Antitrust Anti-retaliation Act (all enforced by OSHA)
Procedures for handling retaliation complaints under the Whistleblower Protection Statutes
Subpart U- Emergency Temporary Standard – COVID-19
For assistance with comments or analysis of these proposals, or general help with regulatory compliance, contact Adele Abrams at Safetylawyer@gmail.com.