ASSE VP for CoPA Cecich Represents ASSE at OSHA I2P2 Stakeholders Meeting

The following from Adele Abrams, ASSE’s Federal Representative, reports on the June 20 OSHA stakeholders meeting at the beginning of the rulemaking process intended to end in an injury and illness prevention program standard. No formal testimony was received. The meeting was held in a discussion format.

On June 29, 2010, I accompanied the ASSE staff and witness Tom Cecich at the third stakeholder meeting held by OSHA on the Injury and Illness Prevention Program (I2P2) rulemaking initiative. This was the first of two meetings slated for Washington, DC (second one is July 20, 2010); previous meetings were held in New Jersey and Dallas, TX. There will also be a meeting August 3 in Sacramento, CA. Notes from the meetings are posted on the OSHA website. At this meeting, the majority of participants were from national trade associations, including those representing small business, homebuilders, electrical contractors, readi-mix concrete producers, the safety profession (ASSE, AIHA and National Safety Council), and a number of unions (AFL-CIO, Steelworkers, Communications Workers, Public Employees etc.).

Director of Standards Dorothy Doherty presided, and project chair Mike Seymour and several other OSHA staffers also were present. This was not a hearing, but an “informal conversation,” Doherty stressed, although it was recorded and notes taken by the facilitator. The agency is focusing on data-gathering and analytical efforts at this point, and looking to its own voluntary safety and health management guidelines (1989), VPP and SHRP experiences and consensus standards including ANSI Z10 and the ISO series. Doherty noted that 12 states now mandate I2P2 programs and that this is a high priority rulemaking for the Obama administration.

Throughout the nearly 8 hour meeting, there were many viewpoints presented but a few themes keep recurring. Industry representatives urged a performance-based program with flexibility for small business entities and a significant amount of guidance and e-tools development by OSHA. The union representatives emphasized worker involvement and seemed to advocate significant documentation and enforcement by OSHA, e.g., if an accident occurred or violations of other standards were found, this would signify that the I2P2 program was not working or was ineffective and would trigger another citation. Business, predictably, thought this would be “double-dipping” in terms of citations, as well as a “Monday Morning Quarterbacking” approach to enforcement. There also was debate over whether the I2P2 end-product goal was a “program” or a “system” and all seemed to agree that this should not just be a paper program in a binder that would sit on a shelf.

The agenda covered several key subjects and the following summarizes the main discussion points raised during each deliberation:

1. Possible Regulatory Approaches
• Should I2P2 apply to construction and multi-employer worksites.
• 1989 Guidelines were the basis for the VPP. OSHA needs to clarify the focus and purpose of I2P2, e.g., risk management, and a system standard should be about identification, assessments, elimination and control of serious risks.
• Do not start by using the 1989 guidelines; they are outdated. Industry is using more modern systems today.
• Issues of management leadership and employee participation, as well as hazard identification and control should be included, to take more of a preventative approach that focuses on general hazards and the company’s safety culture, as opposing to solely focusing on serious injuries.
• NFIB is concerned about small business impact; larger companies will have more sophisticated systems. It is unclear how OSHA will outline requirements with sufficient precision to give small employers information on what is required.
• ANSI Z10 and ISO 18000 raise issues of taking control internally. Look at the risks for individual businesses, not the entire United States.
• In this economy, most hazardous industries don’t hire safety and health professionals but perhaps they will if I2P2 becomes law.
• No one knows hazards as well as the employees so worker involvement is critical. It is harder to put in a program in non-union workplaces.
• Tom Cecich noted that from ASSE’s standpoint, members identify hazards, assess risks and put programs in place to abate or minimize risk. ASSE supports I2P2 but OSHA should also look at what other countries are doing, not just state programs. Other countries have moved to a risk-based approach, a continuous improvement model. The program should focus on higher risks, where workers can be hurt.
• Health of employees contributes to severity of injuries and I2P2 is an opportunity to include wellness programs in a standard (smoking cessation, dietary changes, walking etc.) and distribute information to workers through the employer.
• Canada and European countries have had such programs for years, but in Quebec it is a “white guys’ program” because it deemphasizes injuries to women and minorities. Focus on hazards, not risks. Joint S&H committees are required in other countries, but this may be a function of unionization rates. There, employers must respond to recommendations from employees. Participatory ergonomics programs are included.
• Help will be needed for small business implementation, make it flexible, use global resources and look outside the U.S. The standard is the easy part, but the key is providing necessary guidance and resources: break down by hazardous/non-hazardous industries, have enforcement moratorium for the first few years because it will require a culture change for most businesses and for OSHA.
• There is a lack of understanding on what Z10 says, and the EPA environmental management systems are not a good model. Look at the American Chemistry Council’s Responsible Care program.
• Structure the rule to fit in with what business already ahs to do in terms of meeting ISO standards. Z10 is not a good fit with ISO 9000, so ISO 18000 is preferable as a model.
• Employees should have a responsibility under the program (some countered that this would be a “turnoff” for employee involvement); it was suggested to have guidelines for employee participation.
• The jury is out on whether a mandatory program will work; Cal-OSHA’s I2P2 is a “paper program.”
• NIOSH’s NORA sector-specific research may inform the process. OSHA should include an appendix for small business cross-sectors. Also consider the changing workforce, older workers, presence of chronic diseases and their impact on hazards/risks.
• Wellness programs should be a voluntary appendix to the standard.
• Disagree that business cannot afford I2P2; to the contrary, business cannot afford NOT to have I2P2.

2. Scope and Application of Standard
• There was discussion of whether this should be performance-oriented, industry-specific, and whether there should be any exempt industries (by classification or employer size). Union reps generally were opposed to exempting any employers.
• There was discussion as to whether this would be coupled with General Duty Clause citations (Section 5(a)(1) of the OSH Act).
• Some indicated that states with I2P2 programs saw injury reductions, and the UK fatality rate is 20 percent lower than in the U.S.
• ORC urged not to use I/I rates as a cutoff because it is a disincentive to reporting injuries. Look at types of injuries, or classifications of hazards within an industry. Consider tiering or phase-in effective dates.
• Recordkeeping will be a key small business issue, determining what needs to be documented.
• Many companies have programs in place, some through their insurance companies. Some associations (e.g., NAHB) have looked at developing programs for members. This raises the issue of grandfathering existing programs that may differ from OSHA. There was dialogue about OSHA requiring employers to “throw out” current programs versus just “tweaking” them.
• Some suggested not going after “safe” industries and instead focusing on those with high accident rates, and ensuring that contracted workforces in high-hazard industries are counted when considering accident/injury rates.
• There was considerable input from two panelists who have experience with programs in NY state and in Manitoba, Canada.
• Systems and programs are different, and systems don’t work for small employers but programs do. Programs are simple; systems are complex and involve audits. Mike Seymour said OSHA has more of a hybrid system/program in mind, not ANSI Z10, but systems experience indicates that if an employer uses metrics, it can improve its program over time. ORC said employers need to apply elements of a system to reduce risk.
• There are issues of applying this in construction, given the transient workforce, short-term worksites, and use of hiring halls. Issues involving multi-employer worksites must be addressed.
• The rule should not view programs as static, and employers should have to periodically evaluate program elements for effectiveness and modify them as needed to address deficiencies.
• OSHA needs to be specific about what inspectors will look for and what the rule is and what it is not (e.g., a backdoor to GDC citations or ergonomics standards). Any honest effort by employers to assess the workplace should not be used as the basis for GDC citations.
• There were concerns that if an employer audits and finds hazards and OSHA sees nothing was done, it will be a program failure. Since audits will likely be required by the standard, this will make them mandatory to disclose and to form the basis for citations for hazards discovered.
• Tom Cecich indicated that ASSE members do the things being discussed when it comes to identifying hazards for medium/large employers. There is a need to assess what presents the greatest risk and address it first, there will therefore be a list and some hazards will be identified but not be “compliance issues.” Compliance exposure risks, once identified as a hazard even if low risk, will be a smoking gun for GDC or other citations if not immediately addressed.
• If this is a performance-oriented standard, the “reasonable person standard would likely be used for adjudication; look at a point-in-time hazard within the context of the company’s overall efforts and performance-over-time.
• How will this rule affect nanotechnology? There will never be a rule but a system to prevent I/I could be useful in nanotech industries and also pharmaceuticals.

3. Organization of Rule
• According to OSHA, the main provisions will include: (1) management duties; (2) employee participation; (3) hazard identification; (4) hazard control; (5) education and training: and (6) program evaluation and improvement.
• There was discussion about whether hazard assessment includes monitoring.
• OSHA should try to accommodate programs based on both ANSI Z10 and the 1989 guidelines.
• Key terms need to be defined. Management commitment and role of collective bargaining agreements must be addressed.
• Training must cover specific hazards, work controls, and significant risks. There should be site-specific plans.
• There should be listing of responsibilities by different levels of management.
• There should be a continuous feedback mechanism
• Employee “general health” should be included as a risk factor (fitness, weight etc.)
• There should be training definitions for workers and for foremen, which should be hazard-related.
• If the rule is made too specific, small business won’t do anything, and OSHA should consider non-regulatory options.
• The standard needs to be explicit so OSHA inspectors can enforce it.
• Rule should require written hazard analysis, cause analysis, policy and process, training requirements and designation of who is responsible
• Rule should not be too prescriptive and kept simple; elements of the program will indicate what documents are needed (e.g., safety/health committee minutes). Put out performance-based criteria and let companies set up programs.
• Do not reference consensus standards, but consider content of the regulation, evidence that company has met the requirements, and establish the consequences of non-compliance. Cite companies if they are missing pieces of the program, or not implementing the program. If they miss hazards, this shows something is wrong with the program and may rise to a citable situation.
• There has been no analysis of Cal-OSHA’s I2P2 so why is federal OSHA starting from scratch? Assess the current state programs first. If OSHA has not evaluated these and the VPP, where will it get the data to support a rule?

4. Economic Impact
• OSHA must demonstrate both economic and technical feasibility and do a cost/benefit analysis
• The agency needs to consider incremental costs, grandfathering those with existing programs, include cost of abating identified hazards, and costs to those who employ workers off-site (e.g., delivery drivers, sales reps).
• The analysis must consider at what point after programs are implemented, I/I will actually go down and how long this decrease will continue, in terms of continuous improvement.
• OSHA should not count compliance costs and benefits that were already credited under other standards’ rulemakings.
• OSHA should consider direct and indirect costs to government and communities from injuries and illnesses, as well as to the injured workers, not just costs to business.
• OSHA should consider whether small businesses will need to hire consultants or whether OSHA tools for development/implementation of a program will be sufficient.
• The “product” needs to be defined clearly before costs can be projected.
• Some are not convinced that a rule is needed and there may be other alternatives (education versus mandates, carrots versus sticks).
• Consider language and cultural issues when implementing I2P2 and consider those costs. Emphasize plain language for guidance and make tools graphically attractive to use.
• NSC has data through its Campbell awards program (for sustainable EHS systems) on cost savings and benefits to corporate competitiveness. ORC added that the business value creation should be considered beyond economic benefits.

5. Next Steps
• The SBREFA process (small business regulatory impact assessment) is important and they are looking for suggested small business representatives. Labor participation is also encouraged. Recommendations should be made to Bruce Lundegren at SBA or to Mike Seymour at OSHA.
• OSHA wants information on programs that “work well” so they can avoid “reinventing the wheel.”
• Notes from the stakeholder meeting will be posted on www.osha.gov.