In response to calls from labor groups and unions to develop federal standard that addresses workplace violence in the healthcare and social service sectors, former OSHA chief David Michaels stated during a January 10 meeting that OSHA found that there is ample evidence showing workplace violence is a rampant issue, and that OSHA will work towards establishing a standard. OSHA’s then deputy assistant secretary, Jordan Barab, held an optimistic outlook for the chances of the rule’s development, even in the deregulatory environment of the Trump administration.

In their July 12 petition for a standard, labor groups and unions argued that the OSH Act’s General Duty Clause, an enforcement mechanism requiring companies to maintain safe workplaces, is ineffectual in preventing workplace violence. Bureau of Labor Statistics (“BLS”) data showing an increase in workplace violence during recent years reflects this conclusion, they argued.  The January 10 meeting served as the impetus for OSHA to pursue a standard, and OSHA is currently seeking public comment on a December 7 request for information (“RFI”) that closes on April 6.  Although OSHA officials are uncertain whether the agency can identify the factors that cause violent incidents, labor representatives disagree.

The Obama Administration’s grant of the nursing and labor groups’ petition is seen as a strategic decision on behalf of the Obama Administration to create a legal pathway to sue OSHA should the Trump Administration decline to pursue the standard. In a January 17 interview, Jordan Barab stated that the next step in establishing the workplace violence standard would be to analyze the potential impacts of the rule on small businesses through an advisory committee under the Regulatory Flexibility Act.  Additionally, although the Trump Administration could slow-roll the rule development process for this standard, labor interests have some hope that the ongoing RFI could provide information and momentum for states to pursue their own rules preventing workplace violence.

Labor interests are seeking an OSHA workplace violence standard that contains:

  • Requirements for employers to assess risk factors for workplace violence and to involve workers who treat patients directly.
  • Training and procedure requirements for post-incident care, including workers who provide healthcare in home settings.       Employers would also be required to develop plans that mitigate risks on job sites.
  • Requirements that are enforceable.

That is, if the deregulation-focused Trump Administration moves forward with developing the workplace violence standard.

Shelanski Vows No Regulatory Mess for Next Administration to Handle

The Administrator of the Office of Information and Regulatory Affairs (“OIRA”), Howard Shelanski, assures that the incoming Trump administration will find a tidy and smooth-sailing regulatory review process in place. OIRA, a branch of the Executive Office of the President, reviews regulations drafted by agencies before they are finalized and published in the Federal Register. Although Trump is entitled to appoint heads of agencies, the overwhelming number of employees within departments such as OIRA are career staff that do not change with administrations, allowing for continuity.

Who will head OIRA next, you ask? Trump hasn’t decided quite yet, but Shelanski says that the Administrator’s role within the agency will be contingent on the regulatory posture of the Trump Administration and how much independence executive branch agencies will have.

Shelanski says the next leader of OIRA could have some potential muscle because of the possibility to obtain full support by the president to either stop rules or require changes to them. The Trump Administration’s likely deregulatory and/or anti-regulation stance will ramp up the review process, which would create obstacles for the approval of rules and, in turn, encourage agencies to make changes to their rules. Therefore, the OIRA Administrator may have leverage not only in slowing or blocking the review of rules, but also in directing agencies to revise them.

EPA Issues Final Rule Overhauling RMP Facility Chemical Safety Program

Prior to the close of the Obama administration and after much anticipation, the Environmental Protection Agency (“EPA”) issued its final rule overhauling the Risk Management Plan (“RMP”) facility chemical accident prevention program,[1] the EPA counterpart to the Occupational Safety & Health Administration’s Process Safety Management program.  The new rule strengthens requirements for facilities to reduce risks of accidents, enhance emergency preparedness requirements, and ensure that first responders and the public have information to prepare for and respond to accidents in their communities.  The rule is largely the same as the proposed version issued in March, requiring facilities to conduct third-party analyses after incidents and near-misses, coordinate with local authorities, and conduct safer alternatives analyses.  In response to industry criticism, EPA has walked back several provisions, dropping the requirement to share information on chemical hazards with local emergency planning committees and removing the requirement that facilities make some information available on public websites or at libraries.

However, EPA’s efforts may prove fruitless due to the expected push of the incoming Trump administration and Republican lawmakers to block or kill the rule. The hastened timeline for development of the rule has also created doubt about whether EPA has adequately assessed the rule’s costs and benefits.  The rule will not take effect for 60 days after its publication in the Federal Register; therefore, President Trump could order the Federal Register not to publish it.  Additionally, under the Congressional Review Act the legislative branch could officially reject the final RMP, thereby blocking a future administration from developing a “substantially similar” rule.

[1] The final rule has not yet been printed in the Federal Register; a prepublication version is available at https://www.epa.gov/sites/production/files/2016-12/documents/rmp_final_rule_dec_20_2016_unsigned_version_for_web_with_headers_12-27-16.pdf.

Today OSHA announced that it will publish in the Federal Register a rule on Monday that clarifies that an employer’s duty to make and maintain accurate records of work-related injuries and illnesses is an ongoing obligation, and does not arise solely at the time the injury or illness occurred.[1]  Therefore, if an employer becomes aware of an illness or injury that was not previously recorded, or learns of an error in the way an injury or illness was recorded in the OSHA Form 300 log, he must revise his records—even if the injury or illness originally occurred more than six months ago, which is the amount of time OSHA has to issue a citation following the occurrence of a violation.

Continue Reading BREAKING: OSHA Set to Publish Final Rule Clarifying Continuing Obligation to Record Injuries & Illnesses

EPA has sent its Risk Management Plan revision to the White House Office of Management and Budget for review, calling for a security increase at high-risk chemical facilities. Among other things, this proposal would require independent third-party audits; root cause investigations for incidents and near misses; analysis of safer chemicals and technologies; and more coordination and data sharing with local responders. Although supposedly a compromise, the proposal has drawn many critics—with one side arguing that it does not sufficiently address risks, and the other side claiming that it will be unnecessarily burdensome to employers and will actually increase security risks by making sensitive information to the public.