In the world of OSHA, 2021 brought plenty of developments, although most of them were COVID-19-related. Let’s review a few of the changes from 2021 and how they and others on the horizon might affect us in 2022.
Who will lead OSHA in 2022? It’s important to know because these are the policy-setters. The new leadership may not always agree with employers, but these professionals have been in the trenches of labor and employment and occupational safety and health law.
In the top spot, we have a new Secretary of Labor, Martin Walsh, who previously served as mayor of Boston. He comes out of organized labor in Boston, but as mayor he was known as someone who readily listened to all constituents, including the employer community.
Seema Nanda is OSHA’s new Solicitor of Labor. She served as the Associate Solicitor while President Obama was in office. She has already set a good tone by reaching out to the employer community to seek input, as well as to those of us who practice in the area of labor and employment law.
We finally have a new OSHA chief—Doug Parker—as well. He is Assistant Secretary of Labor for OSHA and a lawyer who comes from the health side of occupational safety and health. Most recently, he was head of Cal-OSHA. He, too, will listen carefully to OSHA’s various constituencies and will say when and why he disagrees—we need that kind of dialogue. Parker is the first confirmed head of OSHA we have had in six years, and that makes a difference; when someone is appointed by the president and confirmed by the Senate, that person carries more clout and is more effective in setting agency policy.
THE BATTLE OVER ELECTRONIC REPORTING
You may recall that this was a big battle fought between the agency and management back in 2016. Under President Obama, OSHA published a rule that required larger employers and even smaller employers in certain NAICS codes to publish and submit electronically their 300 Logs and 301 Forms; it also required all employers of 20 or more employees to electronically submit their 300A Annual Summaries. The Trump administration revised this rule. A January, 2019, amendment kept the e-reporting requirement, but required submission only of the 300A Annual Summaries, as already required for smaller employers. That is the rule as it stands today.
A lawsuit filed against OSHA by Public Citizen Health Research Group claimed that this change could not be made without OSHA’s doing so through the formal rulemaking process; the court rejected that position. The plaintiff did not appeal. It is conceivable they anticipated that the new ruling would not stand much longer; OSHA’s 2021 Regulatory Agenda may prove them correct. The agenda includes a new proposed rule called “Improved Tracking of Workplace Injuries and Illnesses”—the same title used for the 2016 rule. I suspect that “what’s old may be new again.”
THE RETURN OF RULEMAKING
We did not see a lot of rulemaking under President Trump, and it’s nearly certain that we will see much more in 2022. Priority One for OSHA will continue to be COVID-19. This is in part because President Biden has made it a priority and in part because OSHA still believes COVID-19 to be a hazard in the workplace. The Agency already has said that it will continue to pursue adoption of a “permanent” standard on COVID-19 based on the emergency temporary standard it recently withdrew.
OSHA also has said it will continue to promulgate an infectious disease standard. This is a standard that OSHA began to develop under the Obama administration that was shelved under President Trump. It would address all infectious diseases in the workplace, including COVID-19, so it would be more comprehensive than just a COVID-19 standard. Why OSHA believes it needs both a COVID-19 standard and an infectious disease standard is unclear; however, standards are prominent on OSHA’s regulatory agenda.
Another health issue OSHA has said it will be regulating with formal rulemaking is both indoor and outdoor heat. Is heat really an issue? Yes, but it is very difficult to address because every worker’s susceptibility to heat is different. Weight, health issues, medications, and other variables all affect a person’s response to heat. It will be extremely tough for OSHA to develop a standard even to define heat hazard, nevermind to address it.
This column is adapted from a PPSA webinar held in January, 2022, and represents only a small part of the information shared. To learn more about PPSA webinars, events, and other resources, visit ppsa.org.