OSHA's Proposed Rule for Injury and Illness Prevention Programs Raises Concerns

NECA was represented at a  June 29 stakeholders’ meeting in Washington, D.C. on injury and illness prevention programs. OSHA hosted the informal discussion to solicit comments from employers and employees and their advocacy organizations on a proposed rule that would require employers to develop and implement an “Occupational Safety and Health Management System.” At the meeting, NECA Safety Director Jerry Rivera expressed concerns over the direction in which the proposal seems headed.

Most contractors already maintain written safety programs in order to protect their workers, meet insurance requirements, and comply with specific OSHA standards. The system the agency is now proposing would go beyond those requirements by, among other things, establishing procedures for employers to self-inspect their own workplaces.

As OSHA Administrator David Michaels explained in his plenary remarks at the recent Professional Development Conference of the American Society of Safety Engineers, “We know we do not have, nor will we ever have, enough inspectors in every workplace to ensure all health and safety rules and best practices are followed all the time. ... Instead of waiting for an OSHA inspection or a workplace tragedy to address workplace hazards, employers would be required (under the proposed rule) to create a plan for identifying and remediating hazards, and then implement this plan.”

Sounds good. However, OSHA representatives at the June 29 meeting indicated that it’s not only employers failing to self-inspect their worksites, or failing to conduct inspections to OSHA’s satisfaction, that face citations and fines. When the agency sends a compliance officer to a worksite, an employer who dutifully reports the findings of a self-inspection that uncovered a hazard could also be penalized for having a failure within the safety and health process of its program.

Thus, the proposed Injury and Illness Prevention Program rule could become another OSHA enforcement tool like the “general duty” clause of the OSH Act. Section 5(A)(1) states that “Each employer shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or likely to cause death or serious physical harm to his employees.” OSHA routinely cites employers for violating this clause if a specific standard regulating the perceived hazard (such as an ergonomics problem) does not exist. (Section 5(B) implies that an employee could be fined by OSHA for not complying with health and safety standards, but that happens only rarely. The employer bares most of the responsibility for compliance in the eyes of OSHA, acting on the presumption that the employer should have known about any hazard existing in the workplace.)

The proposal is not only problematic because its enforceable boundaries have not been established; the question of employee accountability raises concerns here too. If it is enacted, “workers would participate in developing and implementing the safety and health plan, and have a role in evaluating the plan's effectiveness in achieving compliance,” Michaels said. However, the proposal does not address employee accountability. When NECA’s safety director drew attention to this inadequacy, some participants in the stakesholders’ meeting, which was heavily populated by representatives of labor organizations, reacted negatively, and the OSHA representatives said they did not want to impose additional rules that could stifle employee participation.

Another problem with the proposal is that OSHA has no idea if it will achieve its intended goal of making workplaces safer.  Some states (most notably, California) have adopted similar standards, but — to the surprise of most meeting participants — OSHA has not conducted any studies on their effectiveness.

The June 29 meeting followed similar ones in East Brunswick, New Jersey, and Dallas, Texas. To allow more stakeholders to provide input, OSHA has scheduled another Washington meeting for July 20 and a meeting in Sacramento, California, for August 3. The Federal Register notice that announced the initial meetings contains more information on the proposed rule.

When the series of meetings is concluded, OSHA will begin a more formal rulemaking process and hopes to issue an Injury and Illness Prevention Program final rule before the end of the Obama administration’s current term of office. In the meantime, NECA will be monitoring the further development of this proposal and working hard to protect our members’ interests.