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'Fundamental' Safety-Rule Changes Proposed

OSHA is moving ahead with its proposed rule that would require organizations to adopt a comprehensive approach to prevent workplace illnesses and injuries. The initiative has drawn fire from businesses, which say the mandate would be extremely costly, in both money and potential liability. They also say it's a stealthy way to reintroduce the ergonomics law to the workplace.

Wednesday, March 16, 2011
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Businesses would be required to identify and then fix any health-and-safety hazards in their own shop, under a new regulation in the pipeline at the Occupational Safety and Health Administration.

  

The proposed Injury and Illness Prevention Program requirement -- dubbed I2P2 -- was announced in April and hasn't been written yet, but supporters and opponents are already weighing in on it.

OSHA Administrator David Michaels has called I2P2 "the most fundamental change in workplace culture since the passage of the OSH Act" in 1970.

 

"There will be no more waiting for a worker to get sick, hurt or killed to address a problem; no waiting for OSHA to show up to do an inspection; no playing a deadly game of 'catch me if you can' with the government while risking the lives of workers," Michaels said in January.

OSHA is asking businesses to take a proactive approach because it cannot prevent all workplace injuries and illnesses with only 2,500 inspectors for 72 million workplaces, says an OSHA spokesperson.

President Barack Obama's fiscal 2012 budget request would give OSHA $2.4 million to develop the initiative.

OSHA has already held five stakeholder meetings with employers, professional and trade associations, labor representatives and individual workers to review the proposed rule. The next step is a small-business panel review in June.

This is not an unexpected thrust.

In 1989, OSHA implemented its voluntary Safety and Health Management Program guidelines, which reflect best management practices of successful companies. During the Clinton administration, OSHA tried to make workplace hazard plans mandatory, but efforts stalled in 2001.

Fifteen states, including California, already require such programs of some or all employers.

While some companies and employment-law attorneys are concerned with I2P2, the proposed law has been endorsed by two professional safety organizations, the American Industrial Hygiene Association and the American Society of Safety Engineers.

"AIHA is very supportive of the concept and what we anticipate the standards will be. ... It's an approach that leads to improved [workplace safety]," says the industrial hygiene association's board member Charles Redinger, of Harvard, Mass., who consults on environmental health and safety.

"There are OSHA requirements, but not a single regulation for a comprehensive approach to identifying hazards [in the workplace]," he says. 

In addition, AIHA does not want to exempt small companies or employers with low injury rates from the proposed law, since some of the most hazardous workplaces, such as dynamite-blasting companies, can be relatively small.

"There are a number of ways to reduce the impact" on small businesses, Redinger says, such as setting different criteria or requiring less documentation.

From an HR perspective, I2P2 would improve employee accountability, he says.

"It's a defined system. It would help HR incorporate [safety responsibilities] into their performance review of line supervisors and hourly employees," Redinger says. "Some companies will write the items in their job descriptions."

ASSE president Darryl C. Hill expressed the support of safety engineers for I2P2 in a letter to the U.S. House Committee on Oversight and Government Reform:

 "ASSE has long encouraged OSHA to promulgate an I2P2 standard. The reason is that our members succeed in helping employers protect their workers and workplaces by first identifying potential occupational safety and health risks and then establishing a plan to prevent or control those risks, which is essentially what ... an I2P2 standard would make sure all employers accomplish if the standard is written effectively," he wrote on Feb. 14.

But the cost -- and potential liability -- of a mandatory system is too high, critics say.

Requiring companies of any size to write and implement a workplace safety plan will be prohibitively expensive, says Ed Foulke, who was head of OSHA under President George W. Bush, and now is with Fisher & Phillips law firm in Atlanta.

"I disagree [with the proposal]. ... I believe every company should have a voluntary system in place. I'm a big believer in a [prevention] system, but I don't think a mandatory system is helpful in the long run. ... It is costly, especially for small [businesses], to develop a program, and they don't have the resources and personnel to identify those hazards," he says.

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I2P2 puts the entire burden on the employer to identify hazards and decide what they should do to eliminate or lower them, Foulke says. Doing so would then make it easier for OSHA to cite a company for violations under OSHA's General Duty Clause.

Businesses are worried about potential double jeopardy, says Joe Trauger, vice president for human resources policy with the National Association of Manufacturers in Washington. The concern is that employers would be penalized, first, for failing to meet a standard and then again for not including it in their plans.

Trauger says NAM is also concerned that I2P2 "will not take into account the efforts by employers who already have effective safety-and-health programs in place, or how the new mandate would disrupt safety programs that have measurable successes.

 "Based on information from OSHA, this proposal may allow OSHA investigators to substitute their judgment of the employer's plan on how to achieve compliance and whether some 'injury' in the workplace should have been addressed in some way, even if it was not regulated under a specific standards, or did not amount to a 'significant risk,' as required under the OSH Act."

"This is going to be a very sweeping regulation," says Marc Freedman, executive director of labor law policy for the U.S. Chamber of Commerce in Washington.

Freedman suggests that I2P2 is OSHA's way of revisiting the ergonomics standard, which was adopted in 2000 but then repealed by Congress in 2001.

"The way for OSHA to deal with the ergonomics standard -- because we know they want to -- is to tell employers they must identify their ergonomic hazards. It will become a de facto ergonomic standard," Freedman says.

"Both the ergonomic standard and the I2P2 regulations have a problem [in] that OSHA doesn't know how it's supposed to fix these hazards, ... but they'll reserve the authority to come in and hold a company accountable," Freedman says.

"OSHA does not believe that reducing workplace risks through a systematic, proactive process will increase employers' liability," according to the OSHA spokesperson.

The existing General Duty Clause already covers recognized hazards for which OSHA does not have standards, and that will not change.

"I2P2 is intended to help employers develop a systematic plan to find and fix workplace hazards that are currently covered under OSHA standards or that are currently covered under the General Duty Clause," she says.

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