Tales from DC: December 14-15 NACOSH Meeting
From the Law Offices of Adele Abarms, ASSE’s Federal Representative –
On behalf of ASSE I attended the 2-day meeting of the National Advisory Committee on Occupational Safety and Health (NACOSH) on December 14-15, 2011, held at the Department of Labor Perkins Building.
Dr.John Howard, Director of NIOSH, began the first day with an update on NIOSH activities. Some of the specific items that may be of most interest are:
1. The recent publication on nail gun safety, which NIOSH co-published with OSHA. According to Dr. Howard this is the first time the two agencies have “co-branded” products, and NIOSH hopes to do more such publications.
2. NIOSH plans to host its annual meeting on personal protective equipment technologies on March 20-21, 2012, at the Hyatt hotel, Pittsburgh airport.
3. NIOSH has been meeting and talking with the Green Building Council, regarding inclusion of occupational safety factors in the Green Building certification process. NIOSH submitted a white paper to the Council with some proposals as to how occupational safety and health could be incorporated. Further discussion is anticipated.
4. NIOSH recently released a workforce assessment, conducted by Westat, on the safety and health workforce. The assessment is available on the NIOSH website. The assessment was the first one of this type done since 1978. The assessment showed a significant gap between supply and demand of safety and health professionals.
5. In response to questions, Dr. Howard said that NIOSH will likely not hold a NORA conference this year because of budget considerations, and will likely make that conference every two years.
6. Dr. Howard spoke about NIOSH’s continuing work on the “total worker health” initiative. During questions, some members of the Committee expressed concerns about the merging of occupational and personal health issues, and giving employers greater access and involvement in personal health issues.
Following Dr. Howard, there were two presentations to the Committee on the topic of inclusion of occupational information and occupational safety and health information in on-going efforts to build electronic health records in the United States. Dr. David Wegman, Professor Emeritus at the University of Massachusetts, Lowell, gave a presentation on a recent Institute of Medicine report on “incorporating occupational information into electronic health records.” Dr. Wegman chaired the IOM committee that issued the report. Following Dr. Wegman, Dr. Eileen Storey, from NIOSH, gave a presentation on NIOSH’s involvement in various efforts on electronic health records and incorporating occupational information in those records. Across government (particularly in CMS and CDC) electronic health records is a very large initiative; NIOSH is trying to
The NIOSH focus continued on day two of the meeting with Dr. Paul Shulte from NIOSH giving a presentation on NIOSH’s “Prevention through Design” (PtD) initiative. Dr. Shulte described PtD as a 7 year initiative, planned to run from 2007 to 2014, designed to be a national initiative in which NIOSH plays a coordinating role with its partners. ASSE was prominently mentioned as one of those partners.
Dr. Shulte listed the following as the areas of focus of the initiative:
(1) Research: Working with organizations in the UK, NIOSH conducted a survey evaluation of the UK legislation on PtD. The results from that survey were mostly positive. NIOSH also sponsored or collected several economic evaluations of PtD efforts, including a mechanical lifting program in a nursing home, changing the size and shape of tubs used for wine grape harvesting, and wet cleaning garments as an alternative for dry cleaners. NIOSH also worked with ORC/Mercer on a benchmarking study of 35 companies, to determine what efforts were currently being made to incorporate PtD. In that benchmarking study, 66% of companies said that PtD was incorporated into the company’s management system, but less than 20% had adopted metrics for tracking PtD.
(2) Practice: The initiative developed model guidance and a model company policy for PtD.
(3) Policy: Dr. Shulte referred to the ANSI PtD standard, for which he cited ASSE’s work, inclusion of PtD in the ANSI Z-10 renewal, and inclusion of PtD concepts in 14 other consensus standards dealing with more specific issues, such as ventilation and machinery.
(4) Education: Dr. Shulte cited efforts to have PtD incorporated into engineering textbooks and curriculum. He mentioned a few schools with PtD courses (e.g. Virginia Tech and Virginia Commonwealth), and said that others incorporate it into other courses. In addition to engineering, the initiative would plans to work on having PtD incorporated into the curriculum of architecture and business schools.
During the question period following the presentation, there was discussion of making sure that the initiative included safety and health practitioners. Dr. Shulte referred to past conferences and presentations with ASSE and AIHA, but agreed that NIOSH would like to do more in that area. He also stated that the initiative is now a little over half way through the 7 year time period, and that much of the development work has been done, so more outreach and work with practitioners will be the focus going forward.
Following Dr. Shulte’s presentation, Rob Swain from the Solicitor’s Office gave a presentation on “OSHA coverage.” The request for this came from one of the Committee members, triggered by the accident at Yale University earlier this year where a graduate student was killed while working on a lathe that was not properly guarded. There was some question whether OSHA had in fact cited Yale or declined to do so because the graduate student was not an employee, and Mr. Swain did not comment specifically on that matter.
On the question of who is an employee for purposes of the OSH Act, Mr. Swain said there is no simple answer, but cited two cases and two opinion letters issued by OSHA.
The first case he cited was Nationwide Mutual Ins. v. Darden, 503 U.S. 318 (1992), a case arising under ERISA, where the Supreme Court said that where a statute does not define employee, that “traditional common law principles of agency law” should apply. Thus the agency and courts would look at individual cases on a case by case basis, and evaluate, based on the 20 or so common law factors, whether the individual is an employee.
The second case Mr. Swain cited is a Commission decision, Froedert Memorial Lutheran Hospital, (2004), where the Commission evaluated the common law factors in finding that temporary workers at the hospital were employees of the hospital.
Mr. Swain also cited two opinion letters issued by OSHA relevant to the question of who is an employee. In a 2005 letter addressed to Mr. Stillwell of the Carolina Conference of the Adventist Disaster Response, OSHA stated that where a warehouse operation is staffed entirely by volunteers who receive no monetary or other compensation, “they are not employees subject to coverage under the federal OSH Act.” The second letter he cited was a more recent one, in response to a petition for rulemaking on limiting hours of work by medical residents. OSHA said that residents are employees because they receive a stipend or compensation. Finally, Mr. Swain noted that state OSHA programs may have specific laws or regulations covering “volunteers,” such as firefighters and other emergency response personnel.
OSHA Presentation:
Following Mr. Swain’s presentation, Dr. David Micheals, Assistant Secretary, gave the Committee an update on OSHA activities.
Enforcement: Dr. Michaels said that the number of inspections in FY2011 showed a slight decrease from FY2010, which he attributed to OSHA doing more health and recordkeeping inspections, both of which he said were resource intensive. He also said that the percentage of unprogrammed inspections was up slightly, which he attributed to OSHA doing more complaint inspections. The average penalty per serious violation more than doubled from FY2010 to FY2011, from $1063 to $2132. Despite the increase in penalties, according to Dr. Michaels there has not been a noticeable increase in the contest rate. The number of significant cases was up slightly in FY2011, and the number of egregious cases declined from 20 to 14. In answer to a question, Deputy A/S Rich Fairfax said that the number of criminal referrals had stayed about the same each year for the past several, 12 per year. In answer to another question, Dr.Michaels said that the changes/increases in penalties by federal OSHA had been followed or adopted by some of the state OSHA programs, not in others. In terms of distribution of inspections, Deputy A/S Fairfax said that construction accounts for about 55% of inspections, manufacturing for most of the rest.
National Emphasis Programs: OSHA recently initiated National Emphasis Programs on nursing homes and on chemical facilities. Dr. Michaels indicated that the NEP on nursing homes would both resident handling and other issues, including workplace violence, and would include publication of several new products and directives. The chemical facilities NEP will be similar to the NEP on refineries. It is unclear yet how many chemical facilities will be inspected.
Family Directive: OSHA recently issued a directive on procedures for involvement with victims’ families after a fatality or accident.
Recordkeeping: OSHA has several initiatives on recordkeeping, including rulemakings on reporting, changing from SIC to NAICS, and electronic reporting of injury and illness records. In addition, OSHA has recently completed a new tutorial and logic tree for injury and illness reporting, which is posted on the OSHA website. Dr. Michaels also raised the issue of incentive programs, which he said the agency is looking at as part of the recordkeeping NEP. He also said that OSHA has been concerned about the use of injury rates in evaluating contractors and subcontractors, especially on construction projects, and so is issuing new outreach materials that encourage owners to consider the entire safety program, not just the injury rates.
Injury and Illness Prevention Program rule: Dr. Michaels said it is still the number one priority of the agency, and that he is hoping that the SBREFA process is initiated “soon.” He also talked about using VPP member companies to hold workshops on effective safety management programs.
Exemption for residential fall protection: Dr. Michaels described various outreach and compliance assistance efforts that OSHA has undertaken, prior to the rule being enforced beginning in March.
Noise exposure: OSHA conducted a stakeholder meeting. Among other items raised was that European manufacturers are further along in developing noise reduction technology, and OSHA would like to see more U.S. companies involved in that effort.
Heat campaign: The campaign this summer to combat heat exhaustion and related illnesses was very successful, and OSHA plans to repeat it next summer. Dr. Micheals said that OSHA had been awarded a national award for its public awareness campaign on avoiding heat-related issues.
Publications: Dr. Michaels mentioned the publication on nail gun safety, co-published with NIOSH, the hazard alert on formaldehyde in hair salons, a warning letter sent to 13000 grain elevators on the hazards of engulfment.
Changes in whistleblower protection administration: OSHA now has over 100 whistleblower investigators. OSHA hosted a training meeting in September for whistleblower investigators, and also completed revisions to the investigation manual.
Other priority areas or concerns: Finally Dr. Michaels listed 4 areas of concern where OSHA is looking for ideas on how to proceed:
Chemical Permissible Exposure Limits (PELs). Dr. Michaels describded the gap between the number chemicals in use and the number of OSHA PELs. He said that he is “open to suggestions” on how to proceed. He also noted that other federal agencies, including the Department of Defense, are now using exposure limits more protective, in many cases, than the current PELs.
Health care – Dr. Michaels noted that the injury rate for health care is higher than construction or manufacturing, and OSHA is giving this sector more attention. The nursing home NEP is one part of that, but OSHA is looking for other ideas as well.
Public sector – Dr. Michaels talked about the lack of coverage for state and local government employees in many states
Measuring OSHA effectiveness – Dr. Michaels indicated that this is an area of increasing importance, as government dollars are scrutinized and the agency must be able to show the effectiveness of its various programs and efforts. He mentioned a study done by the Rand Corporation, published in the Journal of Safety Research, on the impact of inspections. He also described an effort by OSHA to use its SST (Site Specific Targeting) program as a “randomized clinical trial” group, to study the impact of different interventions by OSHA. OSHA has just begun that effort, to follow the current cohort of 14000 employers, and that the study will look at the impact of interventions over two years. Thus there will not be a new SST in 2012.
Finally, during the question period, Dr. Michaels was asked about the status of the silica rule, which is at OMB for review. He said that it remained a priority, and the agency has been providing technical information, but that he could not predict when the rule would be released.