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Tales from DC: Latest OSH Reg Update from SBA OSHA/MSHA Roundtable Meeting

Posted in on Thu, Aug 7, 2014

From the Law Offices of Adele Abrams, Esq.:

On July 25, I represented ASSE at the bimonthly meeting of the Small Business Administration’s OSHA/MSHA Roundtable.

The first topic of discussion was OSHA’s forthcoming proposed rule on Infectious Diseases, which is scheduled for a SBREFA panel in the next month or so. Bruce Lundegren of SBA explained the SBREFA process (affecting OSHA rules having a significant economic impact on a substantial number of small entities – business, governments and non-profits). Andrew Levinson, OSHA’s deputy director of Standards and Guidance, then presented a powerpoint summarizing the draft rule’s history, scope and components. The powerpoint is included in the attachments.

OSHA will be taking a different approach from Cal-OSHA, which adopted an aerosol transmissible disease standard in 2009; OSHA will cover both contact transmission and airborne transmission. They are looking for Small Entity Representatives (SERs) from hospitals, ambulatory care units, dentists, nursing homes, and those involved with durable medical equipment, homecare, cleaning/laundry/waste services, ambulance and EMT services and also laboratories and “death care” (funeral homes). The rule will also cover embedded clinics in workplaces, but will not cover homeless shelters or prisons (except for the clinics within those facilities). This will be a vertical standard, covering approximately 8 million health care workers and 1 million “other” employees.

Levinson noted that once the draft rule package goes out to the SERs, in late August 2014, it will also be posted on line in the OSHA docket for public examination. SBREFA panel meetings will be done via teleconference, which will enable more small business participation. The final report to OSHA will be due 60 days following initiation of the SBREFA panel process. There was some discussion about the potential medical removal provisions of the rule and Levinson clarified that this would not apply to non-work-acquired illnesses such as colds and flu. For other illnesses, there may be worker’s compensation due to the employee and there was discussion about whether the obligation to hold the position (under Sec. 11(c) of the OSH Act) for those subject to medical removal is in conflict with the Family and Medical Leave Act, which does not cover small employers.

The next topic was an update on Executive Order 13650, presented by OSHA’s Lisa Long (office of engineering safety). She provided background information on the chemical security initiative and the interim that detailed progress and involvement by OSHA, DHS, EPA, DOT, USDA and DOJ. She is representing both OSHA and MSHA on this, as the Department of Labor’s representative. The goal is to enhance federal and operational coordination and the working group is meeting monthly. There is also a regional pilot program in NYC/NJ that can be a model in the future for regional working groups. They want to have “one stop shopping” for data input. They are also partnering with FEMA on emergency response but the government will not endorse any best practices. The respective agencies are reviewing their policies and regulations to see what needs modernization, such as OSHA’s PSM and explosives rules, and the EPA Risk Management Plan standards. OSHA has a target SBREFA date for PSM of June 2015. DHS has an advance notice of proposed rulemaking on CFATS at OMB currently and will want input. OSHA wants feedback on which chemicals should be covered in rules and there are plans to prepare a chart for inspectors to use covering each agency’s regulations so it can guide site operations and trigger inspection referrals.

The final discussion was an update on the “Safety Culture/Safety Climate” 2013 workshop by NIOSH and other agencies, presented by ASSE members Mike McCullion and Rob Matuga. There are two reports from the conference (cover pages attached) and there is a small business working group focusing on construction firms with 20-30 employees. Their needs are quite different from larger companies, which were the main focus of the 2013 meeting. The quandary is how to measure management commitment, which is hard to survey when companies consist of 5 men and a van. The speakers agreed that the ability of small businesses to measure the effectiveness of safety and health management programs is limited. They expressed concern that the workshop reports are already being referenced in other publications and by OSHA, which misses the point on small business safety issues. They predicted that this issue will arise again in the OSHA I2P2 rulemaking.

The next meeting is tentatively scheduled for September 19, 2014.

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