OSHA’s Latest Regulatory Agenda Suggests Few New Regulations In 2013

OSHA tardily published its Fall Regulatory Agenda on December 21.  The Administration did not even publish the Spring Agenda, and commentators for management and labor have described the dates as bearing little relationship with temporal reality as we know it.

While the proposed Combustible Dust and Beryllium Standards made the list for further action, they are still placed in the system a long way from completion. 

The Administration has caused concern among employers with its proposed I2P2 Standard requiring every employer to prepare an Injury and Illness Prevention Program.  This is a sound idea but there is concern that such a standard would allow wide-ranging citations against employers who would in essence be responsible to develop their own OSHA standards. 

The program has long been earmarked as the Obama administration’s top priority for new workplace safety regulations.

Under the latest agenda, a small business review panel on I2P2 was to be initiated Jan. 6, 2012, with the panel set to complete its work in January 2013. A notice of proposed rulemaking is set for December 2013. But OSHA has not even started the small business review.

What do we learn from the newly released Agenda?  Well, for starters, we can conclude that the Agenda itself is not a realistic guide to when new standards appear and has little relevance.  Perhaps it will be easier for a newly emboldened administration to force through new standards in 2013; however, no administration in the last 20 years has been able to consistently overcome the challenges to producing new OSHA standards.  An obvious question is whether OSHA will increasingly follow the NLRB’s example and make new law through Directives, Interpretations and other executive actions.  seems likely….

About mavity2012

I am a Senior Partner operating out of the Atlanta office of Fisher & Phillips LLP, one of the Nation’s oldest and largest management employment and labor firms. My practice is national and keeps me on the road or in one of our 28 offices about 50 percent of the time. I created and co-chair the Firm's Workplace Safety and Catastrophe Management Practice Group. I have almost 29 years of experience as a labor lawyer, but rely even more heavily on the experience I gained in working in my family's various businesses, and through dealing with practical client issues. Employers tell me that they seldom meet an attorney who delivers on his promise to provide practical guidance and to be a business partner. As a result, some executives probably use different terms than “practical” to describe my fellow travelers in the profession. I don't enjoy the luxury of being impractical because I spend much of my time on shop floors and construction sites dealing with safety, union and related issues which are driven by real world processes and the need to protect and get the most out of one's most important business assets ... its employees. That's one of the reasons that I view safety compliance as a way to also manage problem employees, reduce litigation and develop the type of work environment that makes unions unnecessary. Starting out dealing with union-management challenges and a stint in the NLRB have better equipped me to see the interrelationship of legal and workplace factors. I am proud also of my experience at Fisher & Phillips, where providing “practical advice” is second only to legal excellence among the Firm’s values. Our website lists me as having provided counsel for over 225 occasions of union activity, guided unionized companies, and as having managed approximately 450 OSHA fatality cases in construction and general industry, ranging from dust explosions to building collapses, in virtually every state. I have coordinated complex inspections involving multi-employer sites, corporate-wide compliance, and issues involving criminal referral. As a full labor lawyer, I oversee audits of corporate labor, HR, and safety compliance. I have responded to virtually every type of day-to-day workplace inquiry, and have handled cases before the EEOC, OFCCP, NLRB, and numerous other state and federal agencies. At F & P, all of us seek to spot issues and then rely upon attorneys in the Firm who concentrate on those areas. No tunnel vision. I teach or speak around 50 times per year to business associations, bar and professional groups, and to individual businesses. I serve on safety committees at three states’ AGC Chapters, teach at the AGC ASMTC
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