Proposed OSHA Rule Changes and Regulatory Activity

OSHA regulations are changing all the time - especially in the COVID-19 era. Here are some potential upcoming changes to be aware of to ensure compliance and to maximize the health and safety of your workforce in 2022 and beyond.

OSHA rulemaking process

First, let’s briefly review the OSHA rulemaking process to better understand the significance of the “Final Rule” stage and why it’s so important for employers.

OSHA’s rulemaking process includes seven stages, and it can take anywhere from five to 13+ years to approve new or revised existing OSHA standards. The most significant stage to be mindful of is the Final Rule stage, as rules at this stage are routinely approved within the timeframes employers must include in their short-term enterprise risk assessments.

Under the Occupational Safety and Health Act of 1970, 29 USC 651, OSHA has the authority to enforce safety and health standards promulgated in accordance with the Act. Section 6(b) provides a specific rulemaking process that OSHA must follow when a standard is promulgated, modified, or revoked.

Regulatory Activity Notice: OSHA to increase inspections at trenching, excavation sites

A rise in trench-related fatalities has prompted OSHA to announce enhanced enforcement initiatives. In keeping with its National Emphasis Program (NEP), OSHA compliance officers will perform more than 1,000 trench inspections nationwide where they may stop by, and inspect, any excavation site during their daily duties.

OSHA says enforcement staff will consider every available tool at the agency’s disposal. These actions will place additional emphasis on how agency officials evaluate penalties for trenching and excavation related incidents, including criminal referrals for federal or state prosecution to hold employers and others accountable when their actions or inactions kill workers or put their lives at risk.

In the first six months of this year, 22 workers have died while performing trenching and excavation work, surpassing 15 deaths in all of 2021.

Current Final Rules

Here are a few changes currently in the Final Rule stage that are important to pay attention to going forward.

COVID ETS

It’s worth mentioning the current Covid Emergency Temporary Standard due to the significance of its impact on both employers and employees. The ETS process allows OSHA to bypass the traditional formal rulemaking process previously mentioned and traditionally required under the OSH Act of 1970 in response to what it determines are significant hazards to employees.

The COVID-19 Vaccination and Testing Emergency Temporary Standard rulemaking, applying to employers with 100 or more employees, is being hotly contested in the courts. On Jan. 13, the Supreme Court issued a stay of the ETS until the Sixth Circuit rules on its merits and until the appeals to the Supreme Court are decided. The ETS will still apply to certain industries, and private employers that have implemented COVID-19 policies based on the ETS, that were in the process of doing so, or that want to implement a COVID-19-related workplace policy, may do so, but they should assess these policies in the context of applicable state and local laws and revise them accordingly.

UPDATE

In January, OSHA withdrew the vaccination and testing emergency temporary standard issued on Nov. 5, 2021, which was designed to protect unvaccinated employees of large employers with 100 or more employees from workplace exposure to coronavirus. The withdrawal went into effect on January 26, 2022.

Although OSHA withdrew the vaccination and testing ETS as an enforceable emergency temporary standard, the agency is not withdrawing the ETS as a proposed rule (see the “7 Stages of Rulemaking” link here). The agency is prioritizing its resources to focus on finalizing a permanent COVID-19 Healthcare Standard.

However, it is important to note that this change is in the stakeholder meeting phase of OSHA’s rulemaking process and will likely take years to complete.

Infectious diseases

In April of 2022, OSHA issued a proposed rule on infectious diseases and considered regulatory alternatives for control measures that would effectively protect employees from infectious disease exposures to pathogens with significant potential to cause disease. The agency identified several workplaces where relevant control measures might be necessary, including healthcare, emergency response, prisons, drug treatment centers, homeless shelters, and other occupational settings where employees may have a higher risk of exposure.

UPDATE

Just as with the vaccination and testing emergency standard mentioned above, OSHA is also trying to establish a comprehensive standard that would encompass COVID-related concerns. This is also in stage one and has a long way to go before taking effect. Read more about the update here: https://www.bdlaw.com/publications whats-next-for-osha-rulemaking-on-covid-19-and-other-infectious-diseases / Walking working surfaces rule

With a few exceptions, this rule applies to all businesses in general industry. Many businesses routinely invest in stairs, catwalks, and other working surface improvements to comply with OSHA requirements or to improve access to production areas. In July 2021, OSHA completed the comment period from stakeholders indicating that several regulatory provisions of the 2016 Final Rule on Walking-Working Surfaces (81 FR 82494) are unclear.

In October of 2022, the agency plans to correct a formatting error in Table D-2 1910.28(b)(11)(ii) requiring each flight of stairs with at least three treads and at least four risers to be equipped with stair rail systems and handrails that meet the table requirements. Additionally, OSHA plans to revise the language of the requirements for stair rail systems to make them clearer and to reflect OSHA's original intent.

National Emphasis Programs (NEPs) of special note

National Emphasis Programs (NEPs) are temporary programs that focus OSHA's resources on particular hazards and high-hazard industries. Existing and potential NEPs are evaluated using inspection data, injury and illness data, National Institute for Occupational Safety and Health (NIOSH) reports, peer-reviewed literature, analyses of inspection findings, and other available sources.

For our purposes, we will focus on the top three NEPs that apply to most workplaces and that could have the biggest impact in 2022. The complete list of OSHA NEPs can be found on their Enforcement Page.

Hazardous Machinery (machine guarding and lockout/tagout)

Employer machine guarding and lockout/tagout program effectiveness will be particular areas of inspection under this NEP. This instruction provides updated guidance to the OSHA National, Regional, and Area Offices for continued implementation of its NEP to identify and reduce or eliminate amputation hazards in manufacturing industries.

OSHA’s enforcement history shows that employees are often injured when machinery or equipment is not properly guarded or maintained. This NEP targets industrial and manufacturing workplaces with machinery and equipment that could potentially cause amputations.

OSHA Instruction: CPL 03-00-022 – National Emphasis Program on Amputations in Manufacturing Industries – 12/10/2019 – PDF

UPDATE

In 2021, lack of machine safeguarding made the top 10 list of most frequently cited safety violations with a total of 1,313 violations.

No. 10: Machine Guarding, Standard: 1910.212, Citations in 2021: 1,281, Fines in 2021: $10.7 million.

Thus far in 2022, lack of machine safeguarding currently ranks 9th on OSHA’s top 10 list.

There are several practical steps employers can take to help prevent the direct and indirect costs of machine guarding injuries, including:

Knowing what to inspect (hazard identification and assessment) – Any machine part, function, or process that may cause injury must be safeguarded. When the operation of a machine or accidental contact with it can injure the operator or others in the vicinity, the hazards must be either controlled or eliminated. This includes the point of operation, power transmission apparatus, and other moving parts.

Knowing how to fix it (hazard prevention and controls) – Fixed, interlocked, adjustable, and self-adjusting guards.

Training – Safety training is necessary for new operators and maintenance or setup personnel, when any new or altered safeguards are put in service, or when workers are assigned to a new machine or operation.

Process Safety Management (of highly hazardous chemicals)

This NEP aims to reduce or eliminate workplace hazards associated with the catastrophic release of highly hazardous chemicals at facilities, including petroleum refineries, covered by OSHA’s Process Safety Management of Highly Hazardous Chemicals (PSM) standard, 29 CFR 1910.119. OSHA's standard establishes a comprehensive management program that integrates technologies, procedures, and management practices for hazardous chemical amounts at or greater than the threshold quantities listed in 29 CFR 1910.119.