OSHA-MSHA Regulatory Agendas Released

For regulatory nerds, no days are more exciting than when the White House Office of Regulatory and Interagency Affairs (OIRA) releases its semi-annual regulatory agenda.

And, generally, no day is more anti-climactic.

Today is such a day.  Today’s Fall 2021 Regulatory Agenda is the second agenda of the Biden Administration. Biden’s first agenda last Spring highlighted a new OSHA heat standard and brought Process Safety Management and Infectious Diseases back to the active agenda after languishing on the Long-Term Agenda during the Trump Administration.

What New?

Not much since the Spring Agenda. Mostly the inevitable delays and postponements.

There are two new State Plan-related items of interest. Massachusetts is officially beginning the process of adopting a Public Employee-Only state plan which will provide Bay State public employees a right to a safe workplace. When it is finally adopted, public employees in “only” 23 states will be left without OSHA coverage.  Kudos to Massachusetts!

On the minus side, federal OSHA also begun the process of revoking Arizona’s state plan for “failing its obligations with respect to OSHA’s COVID-19 Emergency Temporary Standard for Healthcare in a timely manner.” We described in October how federal OSHA had warned Arizona, South Carolina and Utah that their state plans were at risk of being revoked because they had not adopted OSHA’s Emergency Temporary Standard covering health care workers that was issued last June.  Since that time, South Carolina and Utah have adopted the standard.  If Arizona’s plan is revoked, federal OSHA will take over the plan — and public employees in Arizona will lose OSHA coverage.  Thumbs down to Arizona!

Other Major Standards

• The long awaited small business (SBREFA) review of the Workplace Violence in Health Care and Social Services standard is still scheduled to start this month, but with only 20 days left of December, color me skeptical…and anxious to being proven wrong.
• OSHA predicts that it will have a proposal out for the comprehensive Infectious Disease Standard in April. Again, color me skeptical.
• And the long awaited modernization of OSHA’s 1992 Process Safety Management Standard (which covers safety in refineries,  chemical plants and other workplaces where highly hazardous chemicals are used) is now scheduled for a Stakeholder Meeting next month.  Yawn. The PSM update was launched at White House direction shortly after the West, Texas fertilizer plant explosion in 2013. We are less than a year and a half from the 10-year anniversary of West. It’s high time that OSHA move this standard to a proposal.
• And the newly announced Heat standard is still ambling along with the Advance Notice of Proposed Rulemaking scheduled to end at the end of December.  Will we see a final standard before the earth burns to a crisp?
• Meanwhile, over at MSHA, work on an updated Silica standard progresses slowly. MSHA has delayed the date for a proposal from next month to the end of August. As you may be aware, OSHA issued its revised silica standard in March 2016, but MSHA continues to enforce an antiquated — and deadly — standard, as cases of severe black lung disease continues to rise among the nation’s miners.

OSHA’s Regulatory Slog

You may have sensed a certain frustration in my voice as I describe the regulatory process and the incessant delays I have written many times over the decades about the slowness of OSHA’s regulatory process and the need to speed things up in order to provide workers with the protections they need in a reasonable amount of time. At this point, it takes decades to issue a major OSHA standard. The process takes far too long even in Democratic administrations, and grinds to a halt during Republican administrations (or actually reverses direction.)

The main reasons for the glacial pace of OSHA standards are OSHA’s tiny budget, Republican administrations and the endless legal and regulatory hurdles OSHA has to surmount.  Those hurdles result from the requirements of the Occupational Safety and Health Act, the way the courts have interpreted the law, additional legislation that has slowed the process and numerous executive orders providing for lengthy White House and inter-agency review. And then sometimes little things like COVID-19 gum up the works even further.

For those of you who are interested, the House Judiciary Committee held a recent hearing on the federal regulatory process which you can view here. Former OSHA Assistant Secretary David Michaels testified at that hearing.

So, that’s all folks. Tune in again next Spring for the next exciting Regulatory Agenda. I can hardly wait!