By Gloria Gonzalez, Crain News Service
WASHINGTON (Jan. 22, 2016) — The Occupational Safety and Health Administration (OSHA) has temporarily withdrawn its proposed slips, trips and falls rule from the White House review process, creating a conundrum for employers contemplating best safety practices.
In 1990, the agency published a proposal to address these hazards — among the leading causes of work-related injuries and fatalities — and establish requirements for personal fall protection systems. The proposal has been rewritten twice to reflect changing technology.
But in a surprising move, OSHA withdrew the rule from the White House Office of Management and Budget (OMB) review process on Dec. 21. An OMB division reviews proposed agency regulations and analyzes their benefits and costs.
OSHA said it is committed to finalizing this rule during this term and noted that other Department of Labor regulations have been temporarily withdrawn from the process in the past, only to be eventually resubmitted and published. However, OSHA could not state a timeframe for resubmitting the rule in its emailed statement.
Employers have taken advantage of the proposed rule in arguing against OSHA citations issued under the current subpart D walking-working surfaces regulations, said Carla Gunnin, an Atlanta-based principal and co-leader of Jackson Lewis P.C.'s workplace safety and health practice group. The agency recognizes that compliance with a proposed rule constitutes what is known as a de minimis violation, which carries no penalty or requirement for abatement, she said.
“In a sense, employers were benefitting from the fact that that rule was proposed because they could get no penalties in the circumstance of a citation,” said Catherine Wilmarth, an associate in the Washington, D.C., office of Kelley Drye & Warren L.L.P.