OSHA Backs Off Proposed Rules

Feb. 8, 2011
Post-election changes in Washington may be sending OSHA in a new direction. In January, OSHA withdrew two significant rule changes related to recordkeeping and noise controls. Employers are waiting to see whether other OSHA proposals will meet the same fate.

On January 19, OSHA announced the withdrawal of its proposed re-interpretation of the noise standard. Had it been adopted, employers with high noise levels would have been required to place more emphasis on feasible engineering and administrative controls, rather than personal hearing protection, to reduce noise exposures. Most objectionable, “feasible controls” would have been defined as those “capable of being done,” without a cost-benefit analysis now used.

Less than a week later, OSHA temporarily withdrew its proposed rule which would have required employers to record musculoskeletal disorders on a new column on the OSHA 300 Log. In support of its withdrawal, OSHA cited the need for more input by small business. Some employer groups had seen the change as a first step toward adoption of another comprehensive ergonomics rule.

Industry organizations applauded the withdrawal of these proposals, while organized labor expressed concern that OSHA is caving in to criticism by the business community.

The head of OSHA, Dr. David Michaels, denies any change in OSHA’s regulatory agenda, but recent events may suggest otherwise. The Republican-led House of Representatives has said it intends to scrutinize all laws, rules and enforcement policies considered detrimental to small business or job growth, forcing OSHA and other federal agencies to rethink their priorities or risk criticism on Capitol Hill. President Obama’s January 18, 2011, Executive Order requiring federal agencies, including OSHA, to make upcoming rules less burdensome and to eliminate those which are too costly or outdated could create additional hurdles for OSHA’s rulemaking ambitions.

Although the noise and recordkeeping rule withdrawals are important, OSHA has even larger proposals on the table, prompting the question: Will they survive? OSHA’s top priority is a new injury and illness prevention rule. OSHA has not released a draft or many details, but it is believed that if passed, the rule would mandate significant changes in employer safety and health programs. Other significant rules under consideration include those addressing combustible dust, crystalline silica and confined spaces in construction.

While Washington's shifting political winds may put some proposed OSHA rules in doubt, reform of the OSHA Act itself is dead. In the last two years, Congress introduced the “Protecting America’s Workers Act” without success. If enacted, the legislation would have greatly enhanced OSHA’s enforcement powers, including civil and criminal penalties. With the Republican-led House of Representatives, there is little chance that similar reform legislation will be considered in the near future.

Rodney Smith is a partner with Sherman and Howard's Labor & Employment Law Department practicing in the areas of occupational safety and health law. The firm’s partners routinely appear before the federal Occupational Safety and Health Review Commission, the federal Mine Safety and Health Review Commission, and state occupational safety and health boards. Visit www.shermanhoward.com.