Heat illness, infectious disease and workplace violence are still on OSHA’s radar for its Spring 2022 Regulatory Agenda, with rulemaking efforts continuing, albeit slowly.
Violations involving these three hazards have typically been enforced via the General Duty Clause – with enforcement efforts already in place for 2022 on heat illness and COVID-19 – and the agency has announced its intentions of creating specific standards for each of them over the past several years.
Likewise, the inclusion of electronic submissions for Form 300 injury and illness data on this year’s agenda should come as no surprise since OSHA has been eager to restore the Obama-era rule that had been mostly withdrawn by the Trump administration.
With all of that in mind, here are the highlights from OSHA’s Spring 2022 Regulatory Agenda:
In June 2022, California, Washington, Minnesota and the U.S. military all have heat illness rules in place for workers, but OSHA continues to rely on the General Duty Clause for enforcement. However, the agency admits “it is likely to become even more difficult to protect workers from heat stress under the General Duty Clause” because of a 2019 court decision in Secretary of Labor v. A.H. Sturgill Roofing.
Since 2011, Public Citizen, a non-profit consumer advocacy organization, along with members of Senate in 2019, have asked OSHA to initiate rulemaking on heat-related illness, so the agency published an advance notice of proposed rulemaking (ANPRM) on Oct. 27, 2021, to explore a possible heat stress standard.
OSHA was scheduled to analyze comments stemming from the ANPRM in June 2022.
While COVID-19 is the first infectious disease to come to mind thanks to the recent pandemic, an OSHA infectious disease standard would cover everything from tuberculosis, shingles and measles to Severe Acute Respiratory Syndrome (SARS) and, of course, the coronavirus.
This standard would cover “employees in health care and other high-risk environments.”
The agency “is examining regulatory alternatives for control measures to protect employees from infectious disease exposures to pathogens that can cause significant disease.”
OSHA issued a request for information (RFI) on such a standard in May 2010, long before the COVID-19 pandemic. A notice of proposed rulemaking (NPRM) is scheduled for May 2023.
While workplace violence is possible in any industry, OSHA is specifically looking at violence in healthcare and social services settings.
The agency issued an RFI to the healthcare and social services industries in December 2016 regarding workplace violence and “a broad coalition of labor unions and the National Nurses United each petitioned OSHA for a standard preventing workplace violence in health care,” according to law firm Littler Mendelson.
OSHA granted the petitions in January 2017 and is preparing to initiate pre-rule efforts under the requirements of a Small Business Regulatory Enforcement Fairness Act (SBREFA) in September 2022.
Injury, illness reporting
This proposed rule would require establishments with 100 or more employees in designated industries to submit data electronically once a year on OSHA’s Form 300 injury and illness records.
The Improve Tracking of Workplace Injuries and Illnesses rule would update the agency’s classifications system for determining the industries covered by submission requirements and would require company names on the forms.
A comment period on the rule was extended to June 30, 2022, with a final rule scheduled for December 2022.