Enforcement and Inspection, Transportation

Review/Preview: A New Year in Safety

What does 2023 hold for workplace safety and health and commercial motor vehicle (CMV) safety?

2022 began with the Supreme Court issuing a permanent judicial stay of the Occupational Safety and Health Administration’s (OSHA) “vaccinate-or-test” COVID-19 emergency temporary standard (ETS). The year ended with OSHA submitting a final healthcare COVID-19 standard for regulatory review at the White House Office of Information and Regulatory Affairs (OIRA).

In 2022, the Federal Motor Carrier Safety Administration (FMCSA) proposed requiring the use of speed-limiting technology on CMVs. The FMCSA also sought comment on the use of electronic identification (ID) for CMVs to enhance agency enforcement. The agency’s last COVID-19 exemption for driver hours-of-service requirements was allowed to expire, and the FMCSA proposed limiting the duration and scope of regional disaster relief exemptions issued by the agency or state governors.


Federal and state officials are still grappling with workplace health outcomes resulting from COVID-19 infections as the pandemic approaches the end of its third year. California established a “nonemergency” regulation that will take effect at the beginning of 2023. OSHA has a permanent healthcare COVID-19 undergoing review at the OIRA that may become final in January.

On December 15, the California Occupational Safety and Health Standards Board adopted nonemergency COVID-19 prevention regulations. The rules will remain in effect for 2 years and replace the state’s emergency temporary standards (ETSs) for workplace COVID-19 prevention, COVID-19 infections and multiple cases, major outbreaks, and COVID-19 prevention in employer-provided housing and transportation.

All California employers must have a COVID-19 prevention plan, which may be a part of or separate from their injury and illness prevention plan. Employers must provide COVID-19 testing at no cost to employees during paid time.

OSHA withdrew the federal vaccinate-or-test ETS for all private sector employers on January 26, 2022, after the U.S. Supreme Court issued a judicial stay of the emergency rule. The court’s majority held that the risk of COVID-19 infection was not an inherently occupational risk.

While the federal healthcare COVID-19 standard is based on OSHA’s 2021 ETS for healthcare facilities, the agency sought stakeholder input on possible changes for a permanent rule.

Issues raised by OSHA included:

  • Requirements triggered by community transmission levels, aligning the application of the rule with the Centers for Disease Control and Prevention (CDC) guidance for healthcare settings, which are based on community levels of COVID-19 transmission;
  • Application of the rule for new strains of a coronavirus, like a hypothetical “COVID-23”;
  • Flexibility for employers, restating some of the emergency rule’s provisions more broadly (such as requirements for aerosol-generating procedures, barriers, cleaning, and ventilation);
  • Whether COVID-19-specific infection control measures are necessary in areas where healthcare workers are not expected to encounter people with suspected or confirmed COVID-19 cases, possibly eliminating certain requirements in the healthcare ETS that applied to all areas of covered healthcare settings;
  • Relaxing some requirements (barriers, masking, physical distancing) for facilities in which a high percentage of staff are vaccinated; and
  • Capping the retention period for COVID-19 logs at 1 year from the last entry in the log.

Some stakeholders have called on employers and governments to do more to address workplace COVID-19 infection risks. The Lancet COVID-19 Commission’s Task Force on Safe Work, Safe School, and Safe Travel recommended establishing new “noninfectious air delivery rate (NADR)” targets to both improve building occupant health and help protect against infectious diseases. The task force’s members included David Michaels, former assistant secretary of labor for occupational safety and health.

The American Society of Heating, Refrigerating, and Air-Conditioning Engineers (ASHRAE) said it would develop a national indoor air quality (IAQ) pathogen mitigation standard within six months.

Economically significant rules

OSHA is developing six economically significant rules:

  • Revision of the agency’s process safety management standards to help prevent major chemical accidents. The U.S. Chemical Safety and Hazard Investigation Board (CSB) currently has 16 open recommendations for OSHA to address.
  • A workplace violence prevention standard for health care and social assistance. There is no current federal workplace violence standard.
  • A communications tower safety standard. The fatality rate in the construction and maintenance sectors of the industry is very high, greatly exceeding the fatality rate for the overall construction industry.
  • A comprehensive federal safety standard for emergency preparedness and response, which now falls under a number of OSHA standards.
  • A federal infectious disease standard for health care and other high-risk workplaces (like correctional facilities), where workers face exposure to infectious diseases that include chickenpox and shingles (varicella disease), measles, methicillin-resistant Staphylococcus aureus (MRSA), and tuberculosis (TB), as well as new and emerging infectious diseases like COVID-19, pandemic influenza, and severe acute respiratory syndrome (SARS).
  • A comprehensive standard for the tree care industry, which the industry itself requested, as tree care currently is regulated by a wide variety of OSHA standards.

OSHA ramps up enforcement

OSHA ramped up enforcement in two areas in 2022: heat illness prevention and excavation and trenching safety. On April 13, 2022, the agency launched an indoor and outdoor heat-related hazards national emphasis program (NEP). In 2021, OSHA issued an advance notice of proposed rulemaking (ANPRM) for a heat injury and illness prevention in outdoor and indoor work settings standard.

Under the NEP, agency inspectors can initiate inspections if they see a worksite where workers may be exposed to heat hazards. OSHA area offices also can act on referrals from the Labor Department’s Wage and Hour Division.

In addition to the agency’s new heat stress NEP, OSHA pushed for greater enforcement of its excavation and trenching standard in response to an increase in fatalities. The 22 deaths in the first months of 2022 represented a 68% increase over 2021.

The agency unveiled plans for 1,000 inspections, instructing compliance safety and health officers (CSHO) to stop by and inspect any excavation site they encounter during their daily travels.

Overall, workplace fatalities started trending up in 2021, the Bureau of Labor Statistics reported on December 16. The rate of fatal workplace injuries increased in 2021 from the rate in 2020 and the pre-pandemic rate in 2019; the fatal work injury rate in 2021 was 3.6 fatalities per 100,000 full-time equivalent (FTE) workers—up from 3.4 per 100,000 FTE workers in 2020 and up from the 2019 pre-pandemic rate of 3.5. The fatal injury rate was the highest since 2016.

The American Society of Safety Professionals (ASSP), the National Safety Council (NSC), and Doug Parker, the assistant secretary of labor for occupational safety and health, expressed concern about the rise in worker fatalities. Parker noted that black and Latino workers had fatality rates disproportionately higher than their coworkers in 2021.

“It’s unacceptable that our nation’s fatal worker injury rate is at a five-year high–a fact made worse by minority populations being disproportionately impacted,” ASSP President Christine Sullivan said in a statement. NSC President and CEO Lorraine Martin said, “The data included in this report indicate workplaces have become less safe, and it is heartbreaking.”

Motor carrier safety: Speed limiters, ELDs, emergency exemptions

In May, the FMCSA proposed establishing requirements for maintaining and using speed-limiting devices on CMVs. The speed-limiting requirements would rely on the use of electronic engine control units (ECUs) capable of governing maximum CMV speeds. ECUs have been routinely installed in CMVs after 2003 to govern vehicle speeds to prevent engine or other vehicle damage.

In 2016, the FMCSA and National Highway Traffic Safety Administration (NHTSA) issued a joint proposal for speed-limiter requirements. The NHTSA proposed creating a federal motor vehicle standard requiring speed-limiting devices on multipurpose passenger vehicles, trucks, buses, and school buses with a gross vehicle weight rating (GVWR) of more than 26,000 pounds.

The FMCSA’s proposal was among the trucking industry’s top concerns reported in October. Speed limiters ranked 9th out of 10 among industry concerns and 5th among drivers.

In September, the FMCSA issued a request for comments on its electronic logging device (ELD) regulations for CMVs. The FMCSA asked for input on whether the agency should reevaluate or modify the applicability of ELD regulations for rebuilt or remanufactured CMV engines; many vehicles with pre-2000 engines and rebuilt pre-2000 engines have engine control modules (ECMs) installed that could accommodate an ELD. The agency asked for further input on how it handles the removal of ELDs from its list of approved devices.

In September, the agency also asked for comment on a plan to require CMVs to be equipped with electronic ID technology capable of wirelessly communicating a unique ID number to the agency. The FMCSA acknowledged that the growing number of vehicles the agency must regulate far outpaces its enforcement resources.       

Monitoring the electronic transponders used for toll collection could enable the agency to focus on “high-risk” carriers and drivers. However, use of the transponders is voluntary, and the agency suggested that the number of trucks and buses equipped with transponders may be limited.

In December, the agency proposed limiting the length and scope of emergency declarations that temporarily suspend the application of motor carrier safety regulations. The FMCSA proposed limiting the scope of exemptions to its hours-of-service regulations, leaving other carrier and driver rules in place.

Emergency declarations issued by the FMCSA or state governors would last 30 days, while presidential declarations would still last 90 days.

At the end of December, the FMCSA denied a request from a coalition of motor carriers allowing the use of hair testing for determining a driver’s drug use. The Department of Health and Human Services (HHS) has issued proposed Hair Mandatory Guidelines for Federal Workplace Drug Testing Programs (HMG) for public comment but has not yet issued a final version of the guidelines.

The FMCSA denied a request from the Alliance for Driver Safety & Security, or “Trucking Alliance,” because the agency concluded that without federal guidelines, it lacks the authority to permit a motor carrier’s use of a positive hair test to determine whether a driver has violated the agency’s drug and alcohol regulations.

Alliance members argued that hair testing is more accurate and reliable than urine testing and provides a longer detection window for controlled substance use, indicating prior use. Carriers that conducted hair testing for nonregulatory purposes found it was effective in eliminating “lifestyle drug users” from the CMV driver pool.

Both the FMCSA and OSHA have significant health and safety rules in development. OSHA’s healthcare COVID-19 standard could become final as soon as January 2023.

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