Fall Regulatory Agenda Released: Not Much New For OSHA

Fall 2017 Regulatory Agenda
Donald Trump in 2017 with “job killing” regs

Yesterday was that bi-annual event that all red-blooded Americans celebrate: the release of the new federal Regulatory Agenda; in this case the Fall 2017 version. President Trump took the occasion to participate in a photo op: cutting a ribbon of red tape in front of a humongous stack of paper representing the Code of Federal Regulations — right next to a very, very small tiny stack of paper representing the CFR in 1960.

And who doesn’t want to go back to 1960?

I won’t waste my time or yours discussing the stupidity of such photo-ops (nor that then-Secretary Labor Elaine Chao — also present with Trump yesterday — staged a similar photo-op at a 2002 speech to the National Federation of Independent Business where she also noted how unfair it was that employers have to comply with OSHA standards when “There are more words in the federal register describing OSHA regulations than there are in the bible.” Start at Minute 8:55 if you’re interested.)

Fall 2017 Regulatory Agenda
Secretary of Labor Elaine Chao in 2002 with “unfair” labor regulations

Trump boasted that his deregulatory efforts was already saving $570 million a year — not a whole lot considering the size of the almost $20 trillion US economy. No word on how many regulatory benefits were lost in the process (e.g. lives saved, diseases and injuries prevented).

And as we communicated yesterday: One person’s “red tape” is another person’s protections.

OK, moving on. Despite the fact that President Trump wants save human-kind from the scourge of worker, environmental and consumer protections by taking us back to the golden pre-OSHA, pre-EPA days of 1960, OSHA’s regulatory agenda seems to have come out relative unscathed…for now.  Nothing was cut. A few smaller items were moved up to “final rule status” – updating the certification requirements of the Cranes and Derricks standard, updates to medical records and fit-testing for respirators, etc.) The communication tower standard is still there and infectious diseases, process safety management and workplace violence remain on the Long-Term agenda.

Of more concern was the fact that the Administration’s proposal to weaken Beryllium protections for construction and maritime workers is still on track to be finalized, with a final standard expected by Sept. 2018. Given that there was no real evidence presented to justify this change, we’ll be interested to see what comes out of this.

Future of Recordkeeping Modernization

Of more interest is the summary of what they’re planning to do with the Recordkeeping Modernization rule. To catch you up, that was the regulation issued in 2016 that required certain employers to send in their summary injury and illness data (Form 300-A) to OSHA by July 1 (later delayed until December 15 — TODAY!! — for those who may have overlooked it.) In subsequent years, these same employers would be required to send more detailed information (Form 300A, 300, and 301) by July 1, 2018. (Smaller employers (20-249 employees) will only have to submit the 300A on an annual basis.)  OSHA’s intention, when this rule was issued, was to post some of this information on the website in order to help employers compare their safety records with others, and to provide information to workers about which employers are safer than others. We’ll see if, or when that happens.

One person’s “red tape” is another person’s protections.

The regulation also prohibited employers from retaliating against or discouraging workers for reporting injuries and illnesses.

OSHA has announced its intention to take another look at parts of this rule. We haven’t seen a proposal yet, but yesterday’s regulatory agenda provided some clues about what they are thinking.  The explanation in the OMB webpage reads:

The preamble to the May 2016 final rule pointed to publication of the collected data as a method to improve workplace safety and health through the rule’s requirements. OSHA stated its intention not to publish personally identifiable information (PII) included on Forms 300 and 301; OSHA Form 300A does not contain any PII. OSHA has now determined that it cannot guarantee the non-release of personally identifiable information. If OSHA were unable to publish the collected worker injury and illness data because it cannot guarantee the non-release of personally identifiable information, then the potential benefit of improved workplace safety and health through publication of the collected data would not be realized. (emphasis added)

My first reaction to that is “huh?”  Before this regulation was issued, and afterwards as we created the webpage, we participated in hours and hours of conversation with officials of OMB’s Office of Information Regulatory Affairs and DOL’s technical experts to ensure that we could, in fact, guarantee the non-release of confidential, personally identifiable information. Most of that information would never even be submitted to OSHA by the employer, and for other information (e.g. birthdates or dates of hire) there were ways to ensure its confidentiality.  So, that fact that suddenly they “cannot guarantee the non-release of personally identifiable information” seems highly suspicious to me.

The “good” news is that OSHA expects this change to have “net economic cost savings of $6.5 million per year.” That’s $6.5 million spread across the entire country. I can already hear the change jingling in employers’ pockets.

But never fear, OSHA also “believes that the loss in annual benefits, while unquantified, are significantly less than the annual cost savings, hence there are positive net benefits to this proposed rule.”

It’s not clear what this unquantified “belief” is based on. Faith based regulation perhaps?  We’re looking forward to the actual proposal to find out exactly what the cost-benefit tea leaves said. According to the Regulatory Agenda, it’s due out by the end of 2017. Sixteen days and counting….

No word on whether the OSHA intends to also change or repeal the prohibition against retaliating against workers for reporting injuries or illnesses. It wasn’t mentioned in the summary, which is good. But these short summaries generally don’t include everything that goes into a proposal.

For those of you who are interested the main DOL regulatory agenda is here and the “long term” agenda is here.

 

Beryllium Recordkeeping Regulations and Standards Trump

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