by Leah Kaiser

Nearly 18 months into the new administration, OSHA still has no confirmed leader. The nominee, Scott Mugno, awaits Senate confirmation. Nonetheless, OSHA’s regulatory agenda marches on with several rules moving from “long-term” to “short-term” priorities.

A few weeks ago, OSHA (alongside the rest of the federal government) released its Spring 2018 Unified Agenda of Regulatory and Deregulatory Actions, outlining the current status of both pending and anticipated rulemaking efforts. OSHA looks as though it will have its hands full with twenty agenda items, up from fourteen on the Spring 2017 list.

Although many of the agenda items are carryovers from last year, there are four initiatives that have been moved from OSHA’s “long-term actions” list to “short-term,” suggesting that OSHA may be more likely to proceed with these initiatives. In addition, there is one new agenda item, a planned “request for information” (“RFI”) regarding the effectiveness of certain control measures for silica dust.

While these rules (detailed below) are slated to continue developing, they are at the early stages of a long rulemaking process. The update to the hazard communication standard is the only one in the more advanced proposed rule stage rather than then “pre-rule” stage. Several of the agenda items still must undergo a small business review, which takes time.

Short-term agenda items

  • Emergency Response and Preparedness
    According to OSHA, it wants to update standards on emergency response and preparedness that are decades old and don’t cover the entire range of hazards that emergency responders now face. OSHA also wants to address changes in protective clothing and equipment. OSHA has prioritized this rule as “economically significant” and plans to initiate a small business review in October to evaluate the potential impacts of a new standard on small businesses.
  • Tree Care Standard
    OSHA characterizes tree care as a high-hazard industry but lacks a comprehensive standard. OSHA intends to initiate a small business review of a new rule in April 2019. However, given the history of this rule, it’s unclear whether action will occur that quickly. No such rule has advanced in over ten years even though the Tree Care Industry Association first petitioned OSHA to adopt a rule in 2006, and OSHA floated almost identical language in the Fall of 2015.
  • Prevention of Workplace Violence in Health Care and Social Assistance
    Violence affecting the health care and social working fields has been a hot topic for several years. In December 2016, OSHA issued a request for information on the subject. Subsequently, a broad coalition of labor unions and the National Nurses United petitioned OSHA to develop a standard. OSHA currently plans to initiate a small business review in January 2019 and has listed the rulemaking priority as “other significant.”
  • Update to the Hazard Communication Standard
    After updating its hazard communication standard in 2012 to mesh with the United Nations’ Globally Harmonized System of Classification and Labeling of Chemicals (GHS), OSHA’s current rules are several years behind the latest edition of GHS. OSHA intends to update its standard with a proposed rule issued by February 2019.

Expanding construction tasks and silica control measures

In a new request for information, OSHA wants to determine if it should expand its list of construction tasks and associated control measures that construction workers can use to comply with its 2016 silica rule for construction. Table 1 of the rule listed dust control methods that employers could use for common construction tasks.

The purpose of the table is to provide a clear path for compliance. It spares construction employers from verifying exposure levels (with data and monitoring) if they employ accepted methods for controlling silica dust. Per OSHA: “Employers who fully and properly implement the engineering controls, work practices, and respiratory protection specified for a task on Table 1 are not required to measure respirable crystalline silica exposures to verify that levels are at or below the PEL for workers engaged in the Table 1 task.”

OSHA intends to use the additional information it gains in response to the RFI to revise Table 1 if deemed appropriate. OSHA currently classifies this rulemaking agenda item as “substantive, nonsignificant,” so it is unclear whether we should expect substantial movement in the near future.

Although much of the remainder of the Agenda involves holdover rules from previous years, here is a full list of the currently anticipated agency actions: