DOL Publishes Semiannual Regulatory Agenda for OSHA and MSHA

Department of Labor (DOL) has published its fall 2018 semiannual regulatory agenda covering OSHA and MSHA rulemaking activities forecast for the coming 12 months. The agenda contains no proposed rules for OSHA and lists no MSHA rulemaking items.

Following is a summary of key pending actions for these agencies, as compiled by our federal representatives at the Law Office of Adele L. Abrams P.C.

OSHA Prerule Items

Four items are listed as prerule stage items:

1. Communication Tower Safety: This rulemaking, initiated with a request for information (RFI) in 2015, has been at the Small Business Regulatory Enforcement Fairness Act (SBREFA) panel stage since May 2018 and was set to be completed in October 2018. This industry sector, while small, has a high fatality rate. Based on its RFI, OSHA determined that current rules for fall protection and personnel hoisting may not adequate cover all hazards in this sector. While the SBREFA panel focuses on communication towers, OSHA will consider expanding the rule to over structures that have telecommunications equipment on or attached to them, such as buildings, rooftops, water towers and billboards.

2. Emergency Response and Preparedness: Initiated with stakeholder meetings in 2014, this topic was reviewed by the National Advisory Committee on Safety and Health and workgroups issued reports. OSHA now intends to initiate a SBREFA panel. The agency regulates some aspects of emergency response and preparedness, but the standards are old and do not address the full range of hazards, nor are they current with respect to performance specifications for protective clothing and equipment. OSHA plans to update the standards based on information gathered from stakeholders.

3. Tree Care Standard: OSHA convened a stakeholder meeting on this topic in 2016 and plans to initiate a SBREFA panel in June 2019. No OSHA standard directly addresses tree care operations so the agency applies a patchwork of standards to address the serious hazards.

4. Prevention of Workplace Violence in Healthcare and Social Assistance: OSHA published an RFI in December 2016 and plans to initiate a SBREFA panel in March 2019. The agency’s latest guidelines on this topic were published in 2014, and it has generally used the General Duty Clause for enforcement.

OSHA Long-Term Actions

1. Infectious Diseases: OSHA commenced rulemaking with an RFI in 2010, and completed an SBREFA panel in December 2014. The next steps are to be determined. If developed, this standard would aim to address infectious disease hazards found in health-care and other high-risk environments, as well as threats from emerging infectious diseases. Potentially covered workplaces include: healthcare, emergency response, correctional facilities, homeless shelters, drug treatment programs, laboratories, coroners’ offices, medical examiners and mortuaries.
2. Process Safety Management and Prevention of Major Chemical Accidents: This action commenced in 2013 with an RFI, and the SBREFA report was issued in August 2016. The next action is undetermined. The RFI related to issues of modernization of the PSM standard and related standards to help prevent major chemical accidents.

NLRB Joint Employer Rulemaking

National Labor Relations Board (NLRB) is engaged in promulgating a rule to establish the standard for determining joint-employer status under the National Labor Relations Act. A proposed rule was published on Sept. 14, 2018, and comments were accepted through Nov. 13, 2018.

This is a significant action because the proposed rule would overturn NLRB precedent-setting decisions that affect franchisor-franchisee relations in several ways, and also have implications for other affiliated companies. One key factor in determining joint employer status historically under current case law is to consider corporate safety programs and management, whether the parent franchisor has control over OSH activities, does audits, has consistent training, provides support or input on OSHA citations and associated litigation, etc. OSHA often references NLRB’s definitions when determining whether two companies are sufficiently joint as to warrant imputing a history of violations from one to the other for repeat classification purposes or for coverage in corporate-wide settlement agreements.

Under the proposed NLRB regulation, an employer may be considered a joint employer of a separate employer's employees only if the two employers share or codetermine the employees’ essential terms and conditions of employment, such as hiring, firing, discipline, supervision and direction. More specifically, to be deemed a joint employer under the proposed regulation, an employer must possess and actually exercise substantial direct and immediate control over the essential terms and conditions of employment of another employer’s employees in a manner that is not limited and routine.

When the NLRB finds a joint-employer relationship, it may compel the joint employer to bargain in good faith with a board-certified or voluntarily recognized bargaining representative of the jointly employed workers. Additionally, each joint employer may be found jointly and severally liable for unfair labor practices committed by the other. And a finding of joint-employer status may determine whether picketing directed at a particular business is primary and lawful, or secondary and unlawful. There has been significant volatility in the law governing joint employer relationships, with the key 2015 decision in Browning-Ferris Industries of California Inc., d/b/a BFI Newby Island Recyclery being reversed in 2017 by a different NLRB majority; that decision was subsequently vacated in December 2017. The hope is that adoption of a rule on this issue will settle the debate and provide more certainty to employers and other entities who utilize the NLRB definitions.

DOL’s October 2018 Unified Agenda

In mid-October 2018, DOL issued a unified agenda of pending rules that included status reports on several OSHA and MSHA rulemaking activities, mostly scaling back some final rule provisions issued as within the last year of the Obama Administration. Following is a summary of key elements of this earlier agenda.

OSHA

• Eliminating some ancillary provisions from the beryllium rule for construction and shipyards (finalized in January 2017, with June 2019 as the target date for an amended final rule.
• Revising certain provisions of the beryllium rule for general industry.
• Reducing requirements for injury/illness data submission to OSHA under the May 2016 electronic recordkeeping rule (June 2019 target date for revised final rule).
• Delaying the finalization of its 2016 Standards Improvement Project IV proposed rule to update several existing rules and eliminate unnecessary paperwork.
• Delaying the update to the Hazard Communication Standard until March 2019 (the next step is a proposed rule to maintain alignment with the Global Harmonization System).
• Delaying the due date to finalize amendments to its 2010 crane standard until June 2019. (Note: the final rule on type and capacity requirements for crane operator training was released on Nov. 9, 2018.)

In addition, OSHA plans to issue RFIs or advanced notices of proposed rulemaking (ANPRM) as follows:

• Crystalline silica (RFI slated for December 2018 to gather information on the effectiveness of control measures not currently included in Table 1 of the final rule for construction).
• Mechanical power presses (RFI slated for December 2018 for input on updating the current rule to address hydraulic or pneumatic power press technological advances).
• Powered industrial Trucks (RFI on how to update its standards on powered industrial trucks).
• Lockout/Tagout (RFI on technological advances employing computer-based controls of hazardous energy that conflict with existing LOTO standards).
• Blood lead level for medical removal (ANPRM in March 2019 on strengthening the existing lead standard by lowering the level at which an employee may be returned to a former job).

MSHA

• MSHA had reopened its comment period on the RFI on exposure of underground miners to diesel exhaust, and comments are now due by March 26, 2019. International Agency for Research on Cancer now classifies diesel exhaust as a known human carcinogen, and NIOSH and National Cancer Institute have stated that diesel exhaust exposure has important public health implications, including increasing the risk of death from lung cancer. MSHA is requesting information on how to improve control of diesel particulate matter and diesel exhaust.
• In March 2019, MSHA intends to issue an RFI seeking stakeholder input on existing regulations that could be revised to include alternatives to safety standards that MSHA typically approves in petitions for modification submitted by mine operators. MSHA says incorporating alternatives into existing regulations would save costs incurred by mine operators who submit such petitions.
• MSHA is soliciting stakeholder comments, data and information to develop the framework for a study to assess the impact of the dust rule on lowering coal miners’ exposures to respirable coal mine dust to improve miners’ health. In addition, MSHA is soliciting information and data on engineering controls and best practices that lower miners’ exposure to respirable coal mine dust. The comment period ends July 9, 2019.
• MSHA is seeking comments on existing standards and regulations that could be improved or made more effective or less burdensome by accommodating advances in technology, innovative techniques or less costly methods, including any requirements that could be streamlined or reduced in frequency. There is no scheduled end date for submission of these comments at this time, although the agenda shows December 2018 as a target.
• MSHA is accepting comments on its RFI regarding safety improvement technologies for mobile equipment at surface mines, and belt conveyors at surface and underground mines. The agency held seven stakeholder meetings throughout 2018, and the comment deadline is Dec. 24, 2018.