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July 28, 2023
OSHA moving forward on six economically significant rules

On July 27, the Department of Labor (DOL) published its regulatory flexibility agenda of rulemakings likely to have a significant economic impact on small entities, including six Occupational Safety and Health Administration (OSHA) rulemakings (88 Fed. Reg. 48576). OSHA plans to issue proposed rules for two of the six by the end of the year.

The economically significant rulemakings at OSHA include those for:

  • Process safety management and the prevention of major chemical accidents,
  • The prevention of workplace violence in health care and social services,
  • Infectious diseases,
  • Communication tower safety,
  • Emergency response, and
  • An industry-specific standard for tree care.

OSHA listed the same six regulatory actions as economically significant in February, and it could issue proposed rules for emergency response and tree care by the end of the year.

OSHA currently regulates aspects of emergency response and preparedness under a number of standards but has no comprehensive emergency response standard. The agency contends that existing standards don’t adequately address known hazards or current emergency response practices. OSHA completed a Small Business Regulatory Enforcement Fairness Act (SBREFA) review in 2021 and plans to issue a Notice of Proposed Rulemaking (NPRM) later this year.

There is no existing tree care industry standard, and the industry petitioned OSHA to request one. The agency held stakeholder meetings in 2016, completed an SBREFA review of the rulemaking in 2020, and plans to issue an NPRM later this year.

It also issued a Request for Information (RFI) regarding the process safety management rulemaking in 2013, and it completed an SBREFA review of the rulemaking in 2016.

The U.S. Chemical Safety and Hazard Investigation Board (CSB) regularly makes recommendations to OSHA and the Environmental Protection Agency (EPA) regarding their regulation of reactive chemical hazards. The CSB currently has 13 open recommendations for OSHA stemming from the board’s investigations of chemical accidents.

In response to petitions from labor unions, OSHA issued an RFI in 2016 for a healthcare and social services workplace violence prevention standard. There is no current federal workplace violence standard, and the agency cites employers following complaints, injuries, fatalities, or hospitalizations using its authority under the General Duty Clause (§5(a)(1)) of the Occupational Safety and Health Act.

OSHA completed an SBREFA review of the rulemaking in May and is analyzing the findings. An analysis report is expected in December, according to the DOL.

The infectious disease rulemaking would establish an occupational health standard for exposures to diseases that include chickenpox and shingles (varicella disease), measles, methicillin-resistant Staphylococcus aureus (MRSA), and tuberculosis (TB), as well as new and emerging infectious diseases like COVID-19, pandemic influenza, and severe acute respiratory syndrome (SARS). There is no current federal infectious disease standard, but California has a state airborne transmissible disease (ATD) standard for health care, correctional facilities, diagnostic laboratories, and police and public health services.

OSHA issued an RFI in 2010, held stakeholder meetings in 2011, and completed an SBREFA review of the infectious disease rulemaking in 2014.

The communication tower industry is small but has a very high fatality rate, greatly exceeding the average fatality rate for the construction industry overall, according to OSHA. The agency issued an April 2015 RFI and concluded that its existing fall protection and personnel hoisting standards aren’t adequate to address hazards in the industry. The agency completed an SBREFA review in 2018 and plans to issue an NPRM next spring.

The “economically significant” rulemakings listed in the DOL’s regulatory flexibility agenda don’t include OSHA’s rulemakings for COVID-19 exposure in health care or heat illness prevention in indoor and outdoor workplaces.

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