Tales from DC: SBA Office of Advocacy OSHA and MSHA Roundtable Meeting

On March 30, 2012, the Small Business Association, Office of Advocacy held its OSHA/MSHA roundtable, and Justin Winter, Esq. of the Law Office attended on behalf of ASSE. The majority of the roundtable involved analysis and discussion concerning OSHA’s final Global Harmonization Rule and its associated impact on OSHA’s Hazard Communication standard. Maureen Ruskin, Director of Chemical Hazards-Metals, Directorate of Standards and Guidance-OSHA, led a detailed presentation on the modifications and new guidance of the OSHA hazard communication standard following the new GHS rule.

The second speaker, Baruch A. Fellner, Esq., led a short discussion on OSHA’s new Memorandum on “Employer Safety Incentive and Disincentive Policies and Practices. Finally, Edward M. Green, Esq., discussed pending MSHA rulemaking, specifically regarding the examination of work areas, pattern of violation standard changes, and respirable coal mine dust exposure.

Ms Ruskin said the Globally Harmonized System of chemical hazard classification is not a model regulation; rather it is a set of criteria from which knowledgeable and competent authorities determine the harmonized classification and communication tools. The new OSHA rule, published on March 26, 2012, adopts the GHS criteria for hazard classification. The new OSHA HazCom rule will require additional safety information on safety data sheets as well as more descriptive hazard communication labels. The manufacturers and importers of hazardous chemicals have the responsibility of classifying each chemical through utilization of the GHS harmonized hazard classification system. The chemicals imported into the United States must adhere to uniform classification and communication techniques in order to protect American Workers, reduce chemical source injuries and illnesses, and align the OSHA HazCom standard with modern technology.

According to Ms. Ruskin, 40% of chemical source injuries and illnesses have decreased as a result of the current OSHA HazCom standard. However, as new technology and chemical analysis became available, OSHA believed even more could be done to protect American workers from chemical source injuries. According to OSHA, the modified HazCom standard will decrease training costs for employees, provide quicker access to chemical safety data, and clearly convey the safety data and hazards presented by certain chemicals to workers (especially limited literacy workers) through revised safety data sheets and labels. By aligning the HazCom standard with the UN GHS, the OSHA HazCom final rule will become more comprehensive and uniform in its requirements. Ms. Ruskin stressed the fact that no new chemicals will be covered under the new HazCom rule than were previously covered by the original HazCom rule, which was a main concern of many of the small businesses present at the roundtable. Further, each chemical has an associated hazard class, and the new rule has created distinct section for chemicals not otherwise classified. Manufacturers and importer will be responsible for classifying each chemical, and determine associated hazard class based upon all available data. The hazard data will be reflected on updated hazard communication labels through the use of signal words, pictograms, and precautionary statements. The new safety data sheets will include 16 sections, each reflecting comprehensive safety information for the chemical. OSHA will also review its other standards in order to determine if additional standard modifications must be made in order to adhere to the new GHS HazCom rule. By December 1, 2013, employees must be trained on label elements and new safety data sheets; by June 1, 2015, manufacturers and importers must comply with modified label provisions; and, OSHA enforcement of the new HazCom rule begins June 1, 2016.

Attorney Baruch A. Fellner discussed the new OSHA memorandum regarding workplace incentive and disincentive programs. According to Mr. Fellner, OSHA will begin closely scrutinizing employee incentive programs aimed at safety, as well as the discipline of employees for violating injury reporting guidelines.  OSHA will also review cases in which employees have been disciplined after suffering a workplace injury. Mr. Fellner reiterated the language contained in section 11(c) of the OSH Act, stating that employers cannot discriminate against an employee because the employee reports and injury or illness. OSHA believes incentive programs may have the unintended consequence of convincing employees to not report safety injuries or illnesses due to the desired incentive contained in the program. Additionally, employers may punish employees who have suffered a reportable accident on the job. OSHA has begun investigating these instances, and they may bring discrimination suits if the administration feels as though employees do not feel free to report injuries or illnesses. However, Mr. Fellner said incentive programs foster safety, and if OSHA does seek bring discrimination actions based upon the existence of incentive and disincentive programs, the ultimate goal of preventing workplace injuries and illnesses has not been advanced.

Another attorney, Edward Green, discussed recent MSHA rulemaking and potential enforcement modifications regarding workplace examinations, pattern of violations (POV), and respirable coal dust exposure. According to Mr. Green, new workplace examination requirements for underground mines would significantly increase the burden on mine examiners by requiring them to look for violations of health and safety standards, and he claimed new requirements on inspectors would distract them from their ultimate objective of discovering potential safety hazards.

Mr. Green also discussed the new POV standard (due in April 2012), which lileky will eliminate an operator’s  “last chance” to correct its safety and health performance before being placed on POV status through the elimination of the advanced notice of POV. The ultimate result of the new POV regulation will be many more mines being placed on POV status. Mr. Green finished his remarks by discussing the inadequacy of MSHA coal dust sampling techniques and insufficient analytical methodology. According to Mr. Green, the Government Accountability Office is issuing an interim report to the Committees on Appropriations of the United States House of Representatives and Senate evaluating MSHA’s data collection and sampling, including an analysis, as well as the sufficiency of MSHA’s analytical methodology.