OSHA’s Regulatory Plans for 2023

By Guy Burdick

Is your business in the bullseye of the Occupational Safety and Health Administration’s (OSHA) 2023 regulatory plans? If you oversee a healthcare facility, then the answer is a resounding “yes.”

Labor Secretary Marty Walsh recently confirmed that three OSHA healthcare rulemakings are priorities for the Labor Department: a permanent healthcare COVID-19 standard, a proposed infectious disease standard, and a rulemaking to address workplace violence in healthcare and social services.

Beyond healthcare, a wide swath of industries will soon have to comply with the first federal standard for heat illness prevention in the workplace. They are already the focus of OSHA’s heat illness prevention emphasis program.

Many more employers will feel the weight of OSHA’s other regulatory plans included in the Labor Department’s fall 2022 agenda, unveiled January 4. Rulemakings include updates to the crystalline silica standard’s provisions for medical removal, lockout/tagout, mechanical power presses, and powered industrial truck design standards.

OSHA has long had three primary missions:

• Workplace health and safety promotion through its alliance and partnership, compliance assistance, and employer recognition programs;
• Enforcement, which includes its local, regional, and national emphasis programs and severe violator enforcement program; and
• Regulation through permanent and emergency temporary workplace safety and health standards.

The Labor Department’s fall 2022 agenda includes new rulemakings at OSHA, like a rulemaking for designating a worker representative during inspection walkarounds.

The rule would clarify workers’ rights to specify a worker or union representative to accompany an agency compliance safety and health officer (CSHO) during the workplace walkaround portion of an OSHA inspection. The CSHO would determine whether a representative is necessary for an effective and thorough inspection.

There also is a new rulemaking on the agenda regarding procedures for the use of administrative subpoenas. OSHA uses subpoenas extensively in its enforcement activity to gather evidence and interview witnesses. The agency wants to adopt a regulation on the use of subpoenas during OSHA investigations to circumvent the disputes that often crop up between OSHA and employers. OSHA believes a rule would provide clarity to both the agency and the regulated community on subpoena issues and promote transparency and a uniform subpoena practice throughout the agency.

COVID-19

The healthcare COVID-19 final rule is undergoing regulatory review at the White House Office of Information and Regulatory Affairs (OIRA). The OIRA continues to schedule stakeholder meetings regarding the final rule. The final rule is based on OSHA’s 2021 healthcare emergency temporary standard (ETS), but the agency considered changes and updates, possibly making the rule more performance-based than specification-based. The agency also weighed whether to exclude areas of healthcare facilities where workers are unlikely to have contact with confirmed or suspected cases of COVID-19.

OSHA sought input during the hearing and comment period on several issues, including:

• A trigger for requirements based on community transmission levels, aligning the rule’s application to the Centers for Disease Control and Prevention (CDC) guidance for healthcare settings, which is based on community levels of COVID-19 transmission;
• Application of the rule for new strains of the SARS-CoV-2 virus;
• Flexibility for employers, restating some of the rule’s provisions as broader requirements without the level of detail included in the healthcare ETS;
• Relaxing some requirements (barriers, masking, physical distancing) for facilities in which a high percentage of staff are vaccinated; and
• Capping the retention period for COVID-19 logs at 1 year from the last entry in the log.

Infectious disease

OSHA will propose an infectious diseases rule to protect employees in health care and other high-risk environments from exposure to and transmission of persistent and new infectious diseases, according to Walsh’s statement of regulatory priorities. The rulemaking would focus on exposures to infectious diseases that include chickenpox and shingles (varicella disease), measles, methicillin-resistant Staphylococcus aureus (MRSA), and tuberculosis (TB), as well as new and emerging infectious diseases like COVID-19, pandemic influenza, and severe acute respiratory syndrome (SARS), according to OSHA.

The standard would likely cover workplaces outside of healthcare facilities, such as correctional facilities, coroners’ offices, drug treatment programs, emergency response, homeless shelters, medical examiners, medical laboratories, mortuaries, and pathologists.

Federal OSHA already has a standard addressing the hazards of bloodborne pathogens and needlesticks, and California has a state airborne transmissible disease (ATD) standard for health care, correctional facilities, diagnostic laboratories, and police and public health services in addition to its COVID-19 standards.

Workplace violence

OSHA plans to initiate small business consultations in developing its rulemaking for workplace violence prevention in health care and social services. There is no current federal workplace violence standard. OSHA cites employers under the General Duty Clause (§5(a)(1)) of the Occupational Safety and Health (OSH) Act when it finds employees exposed to workplace violence hazards.

In 1996, the agency issued voluntary prevention guidelines for health care and social assistance that may point to elements of a possible federal standard.

Heat stress

OSHA also plans to launch small business consultations as a next step in developing the agency’s rulemaking on heat illness prevention. In addition to the rulemaking, OSHA launched an indoor and outdoor heat-related hazards National Emphasis Program (NEP) last year. As with workplace violence, OSHA cites employers for heat stress violations using its General Duty Clause authority.

The NEP allows agency inspectors to make “self-referrals,” inspecting worksites they encounter during their daily travels where workers may be exposed to heat hazards. The NEP also allows area offices to act on referrals from the Labor Department’s Wage and Hour Division (WHD).

Economically significant rules

OSHA’s economically significant rulemakings include the ones for infectious disease and workplace violence in health care and social services, along with four others: communication tower safety, emergency response, an industry-specific standard for tree care, and a revision to the agency’s process safety management (PSM) standard to address major chemical accidents.

Communication tower safety. OSHA plans to issue a notice of proposed rulemaking (NPRM) for a communications tower safety standard in March 2023, according to the Department of Labor’s (DOL) agenda. There is a small number of workers in the communications tower industry, but the fatality rate in the construction and maintenance sectors of the industry is very high. The fatality rate has exceeded the overall rate for the construction industry for more than 20 years, according to the agency. OSHA concluded that existing fall protection and personnel hoisting standards may not adequately cover all the hazards of the industry.

Emergency response. While there currently is no comprehensive emergency response standard, OSHA regulates aspects of emergency response and preparedness through standards that were promulgated decades ago. Existing standards do not address the full range of hazards or concerns emergency responders and others are currently facing, according to the agency. OSHA has completed Small Business Regulatory Enforcement Fairness Act (SBREFA) review and intends to issue an NPRM in September.

Tree care. Hazards involved in tree care operations are now regulated under a patchwork of standards. The industry petitioned OSHA to establish a standard specific to tree care. The agency issued an advance notice of proposed rulemaking (ANPRM) in September 2008, and an SBREFA panel completed its review of a possible rulemaking in May 2020. According to the DOL’s regulatory plan, OSHA will issue an NPRM in May.

PSM. The agency issued a request for information (RFI) in December 2013, which pointed out issues related to modernizing the PSM standard for highly hazardous chemicals. OSHA has completed an SBREFA review and, on October 12, held a virtual informal stakeholder meeting seeking input on potential changes. The U.S. Chemical Safety and Hazard Investigation Board (CSB) currently has 17 open recommendations for OSHA to address.

Whistleblower procedures

OSHA also has final and interim final rules in development, updating its procedures for investigating whistleblower complaints.

The OSH Act of 1970 first established OSHA’s whistleblower protection authority. The agency is now responsible for investigating whistleblower complaints under more than 20 federal statutes, governing everything from aviation, commercial motor carrier, consumer product, food, motor vehicle, nuclear, and pipeline safety to anti-money laundering, criminal antitrust, environment, financial reform, health insurance reform, maritime, public transportation, railroad, securities, and taxes.

The agency has outlined plans to issue:

• An interim final rule for handling retaliation complaints under the Criminal Antitrust Anti-Retaliation Act and a final rule for handling retaliation complaints under the Taxpayer First Act;
• An interim final rule in January for investigations of whistleblower complaints under the Anti-Money Laundering Act (AMLA) of 2020; and
• An interim final rule in February for investigations under the Pipeline Safety Improvement Act (PSIA) and the Wendell H. Ford Aviation Investment and Reform Act for the 21st Century (AIR21).

Electronic filing, HazCom

In March 2022, the agency proposed to reinstate requirements for the electronic submission of injury and illness logs and incident reports. OSHA plans to issue a final rule this March.

In 2016, the agency set up requirements for establishments with 250 or more employees to electronically submit information from their OSHA Forms 300, 300A, and 301, but in 2019, the agency removed the requirement for electronic submission.

The new rule would reinstate reporting requirements established during the Obama administration but removed during the Trump administration. OSHA intends to post OSHA Form 300 (“Log”) data on its website, as well as information from its Form 301 (“Incident Report”) filings.

OSHA also plans to issue a final rule in March, harmonizing the agency’s hazard communication (HazCom) standard with the seventh edition of the Globally Harmonized System of Classification and Labelling of Chemicals (GHS). The agency’s 2012 amendments to the HazCom standard adopted elements of the third edition of the GHS.

Arizona state plan

A rulemaking to revoke Arizona’s state plan authority remains open while OSHA reviews comments. In August, OSHA reopened comments on the agency’s proposed revocation of approval for Arizona’s workplace safety and health program.

The federal agency initiated revocation proceedings because Arizona did not adopt OSHA’s June 21, 2021, COVID-19 healthcare ETS. The ETS is the basis of OSHA’s permanent standard, now undergoing regulatory review at the OIRA.

The recordkeeping and reporting requirements of the federal ETS remain in effect, and Arizona adopted the recordkeeping and COVID-19 log requirements last February.

OSHA also began revocation proceedings in 2014 when the agency determined Arizona’s residential construction fall protection requirements were less effective than the federal standard. OSHA formally rejected Arizona’s fall protection requirements in 2015.

Regulatory activity at OSHA remains robust, but the agency’s priority rulemakings are the healthcare COVID-19 final rule, infectious disease proposal, and SBREFA review of the workplace violence rulemaking.