Regulatory Developments

OSHA Moving Forward with Rulemakings

The Occupational Safety and Health Administration (OSHA) has plans to move forward with rulemakings addressing heat illness prevention; infectious disease hazards in healthcare and related industries, including COVID-19; and workplace violence in healthcare and social services, according to the Department of Labor’s (DOL) fall 2021 semiannual regulatory agenda, published January 31 (87 Federal Register (FR) 5002, 5252).

The six OSHA rulemakings on the DOL’s Regulatory Flexibility Agenda, which may have a significant economic impact, are:

  • Process Safety Management and Prevention of Major Chemical Accidents,
  • Emergency Response,
  • Prevention of Workplace Violence in Health Care and Social Assistance,
  • Infectious Diseases,
  • Communication Tower Safety, and
  • Tree Care.

The DOL’s statement of regulatory priorities included OSHA’s rulemakings on heat illness prevention, infectious disease, and workplace violence.

Heat illness prevention

According to OSHA, heat has become more dangerous, as 18 of the last 19 years were the hottest on record. The agency cited Bureau of Labor Statistics (BLS) data showing that heat stress killed 815 U.S. workers and seriously injured more than 70,000 from 1992 through 2017.

While California, Minnesota, and Washington have heat stress or heat illness prevention standards, federal OSHA cites employers under the General Duty Clause of the Occupational Safety and Health (OSH) Act in instances of heat-related illness or fatality.

The Occupational Safety and Health Review Commission has criticized OSHA’s reliance on the General Duty Clause and even vacated employer citations in a heat-related fatality.

On October 27, 2021, OSHA issued an advance notice of proposed rulemaking (ANPRM) containing 114 questions about a potential heat illness prevention standard but no proposed regulatory text.

Infectious disease

The agency plans to issue a notice of proposed rulemaking (NPRM) for an infectious disease standard in April.

The agency has withdrawn its COVID-19 vaccine-or-testing emergency temporary standard (ETS) and all but the recordkeeping provisions of its COVID-19 healthcare and healthcare support services ETS. However, OSHA plans to address the hazards of COVID-19 in healthcare, as well as the infectious disease hazards posed by measles, methicillin-resistant Staphylococcus aureus (MRSA), pandemic influenza, severe acute respiratory syndrome (SARS), tuberculosis (TB), and varicella disease (chickenpox, shingles).

The standard could apply to many workplaces beyond healthcare, including coroners’ offices, correctional facilities, drug treatment programs, emergency response, homeless shelters, medical examiners, medical laboratories, pathologists, and mortuaries.

Workplace violence

OSHA is preparing for a Small Business Regulatory Enforcement Fairness Act (SBREFA) review of the workplace violence in healthcare and social assistance rulemaking. The agency described workplace violence as a “widespread problem” and asserted that workers in healthcare and social services occupations face unique safety risks. OSHA noted BLS data showing that workers at psychiatric and substance abuse hospitals experience the highest rate of violent injuries that result in days away from work—a rate six times that for workers at nursing and residential care facilities.

The agency granted the petitions for a rulemaking from the National Nurses Union and a coalition of other labor unions on January 10, 2017, in the final days of the Obama administration.

Electronic filing, Arizona

OSHA also has plans to reinstate electronic filing requirements for Form 300, Log of Work-Related Injuries and Illnesses, and Form 301, Injury and Illness Incident Report. Under the Trump administration, electronic filing requirements were removed on January 25, 2019.

The agency also is considering revoking approval of Arizona’s state occupational safety and health plan and resuming federal enforcement in the state. OSHA stated that Arizona failed to maintain its commitment under the OSH Act because the state did not establish a state standard “at least as effective as” the federal COVID-19 healthcare ETS in a “timely manner.”