PERSONNEL MATTERS: Employers guessing about OSHA proposal

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WASHINGTON (Jan. 22, 2016) — The Occupational Safety and Health Administration (OSHA) has temporarily withdrawn its proposed slips, trips and falls rule from the White House review process, creating a conundrum for employers contemplating best safety practices.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to finalizing this rule during this term and noted that other Department of Labor regulations have been temporarily withdrawn from the process in the past, only to be eventually resubmitted and published.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.

“There's a chance that with the withdrawal of this proposed rule OSHA may go harder on employers who violate slips, trips and falls issues because the de minimis violation treatment may no longer be available.”

Several experts indicated that the temporary withdrawal was driven by the agency prioritizing its long-awaited silica rule, which would limit crystalline silica exposure, and its controversial improved tracking regulation of workplace injuries and illnesses.

W.E. Scott, director of consulting services for the National Safety Council in Itasca, Ill., said the slips, trips and falls proposal made sense in many ways, including taking into account new technologies and procedures to protect workers and extending certain safety requirements in the construction sector to general industry, and could help reduce the 20 fatalities and 3,500 serious injuries tracked by the council's 2015 Injury Facts report.

But in the meantime, the withdrawal raises substantial uncertainties for employers, these experts said.

Guard rail standards

For example, an interpretative guidance letter on OSHA's standards for fixed industrial stairs published in 2008 noted the standard height of the guard rail is 42 inches, but the agency considered a height of 36 or 37 inches to be a de minimis violation. It is unclear if employers now have to retrofit all their guard rails to comply with the 42-inch standard, Ms. Gunnin said.

“It probably would be a best practice to continue to attempt to comply with the proposed rule as issued just in case it is re-sent to OMB and in case they do continue to treat compliance with that proposed rule favorably in assessing penalties or citations,” Ms. Wilmarth said. “It serves as probably the best available indication of what OSHA considers to be good practices.”

Falls on the same level or to a lower level cost employers $15.6 billion in 2013, while slips and trips without falls cost nearly $2.4 billion, according to Liberty Mutual Research Institute for Safety's 2016 Workplace Safety Index.

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This report appeared on the website of Business Insurance magazine, a Chicago-based sister publication of Tire Business.