OSHA has been actively pursuing a regulation requiring employers to establish an injury and illness prevention plan (I2P2). But the agency’s latest regulatory agenda suggests a change in direction.
Although I2P2 plans are the law in many states, federal OSHA has not yet required that employers establish formal written I2P2 plans to find and fix workplace hazards under penalty of enforcement. As recently as last fall, OSHA expressed support for a regulation and anticipated a notice of proposed rulemaking would be forthcoming in September. But in its most recent regulatory agenda, OSHA moved the I2P2 into its “long-term action” category. Although this doesn’t mean an end to the initiative, it does suggest a change in direction, according to attorney Tressi Cordaro, a shareholder with Jackson Lewis in Washington, D.C. Cordaro, who specializes in OSHA matters, believes the change reflects shifting priorities and limited resources. “My take on it, and that of other attorneys I’ve talked to, is that it’s more of a bandwidth issue.” According to the current regulatory agenda, OSHA plans to announce three final rules between now and October: changes to reporting and recordkeeping rules, confined space in construction, and walking/working surfaces in general industry. As well, the agenda shows that OSHA anticipates issuing a notice of proposed rulemaking this month on occupational exposure to beryllium.
OSHA Trying to Get a Lot In “They’re trying to get a lot in, and to me it comes down to a lack of staffing to move forward on the rest of the agenda. They’ve prioritized and moved I2P2 to the back burner for now.” Cordaro believes that by moving recordkeeping, confined space, and walking/working surfaces ahead of I2P2, OSHA has made a decision to focus on existing rulemakings and see them through to final rule status before starting a new rulemaking on injury prevention. OSHA has also been addressing the subject of cell phone tower safety and has been encouraging employers to use best practices to stem the recent tide of fatalities. Requesting information for a possible standard should put affected employers on notice, says Cordaro. She adds, “As an employment attorney, I strongly recommend that once the request for information is put out, those that are affected provide the agency with information they’re asking for so that a rule is developed based on accurate facts.” Cordaro calls the current regulatory agenda “aggressive” and expresses doubt as to whether OSHA will be able to meet all deadlines for final rules as indicated. She points to a final rule on electric power generation and transmission that was published in April, but had been expected last November.
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