SAFETY'S CHANGING HEADLINES

In the nearly 10 months since the start of the Obama administration, a new era of safety and health policy is taking root. Sweeping policy changes are occurring with dispatch at agencies like OSHA and others. Here are five headlines to consider, followed by my perspective along with additional information sources:

Headline: OSHA Making Point With Sizable Proposed Fines

Perspective: Maybe they were clearing the books approaching the end of the 2009 federal fiscal year Sept. 30, but it seems – anecdotally at least – that OSHA regional and area directors were pushing out more sizable proposed penalties in August and September. Clearly, acting OSHA administrator Jordan Barab has signaled that the agency would place greater emphasis on enforcement, delighting proponents who had claimed the agency under the previous regime was focused too much on voluntary compliance.

Some of the heftier proposed fines, announced in OSHA news releases, included $576,750 on Aug. 20 levied against a bark and stone plant company operating in Alabama, Georgia and Mississippi; $304,200 on Aug. 31 against a Rochester, NY solid waste collection firm for failing to correct hazards cited in 2008 inspection; $275,000 on Sept. 4 against a Lombard, IL metal coatings company for alleged electrical and fire safety violations; and $294,950 on Sept. 24 against a Canton dairy after receiving information alleging numerous safety violations.

Additionally, a Bloomer, WI underground construction contractor agreed Sept. 30 to pay $474,000 in penalties as part of a settlement agreement addressing hazards cited during three inspections. In their news releases, OSHA officials are using tough language, such as "It's time for this indifference to employee health and safety to stop" and the company displayed a "systemic indifference to the safety and health of their own employees, resulting in a dangerous work environment."

When proposed penalties reach the $300,000 mark, they are pretty significant. Among OSHA’s Top 10 dollar cases during fiscal year 2008, the highest proposed penalty was $8.8 million against Imperial Sugar Co. where 14 employees were killed in a sugar dust explosion. The 8th, 9th and 10th largest proposed penalties on the list were $330,000, $328,500 and $321,500, respectively.

Already in October, after the start of the 2010 fiscal year, OSHA already has announced proposed penalties to companies of $231,600, $364,350 and $237,500 in three instances.

MORE: OSHA enforcement information.

Headline: Globally Harmonized System Getting Ever Closer
Perspective: If there ever was a rulemaking scheme that highlights entrenched federal regulatory bureaucracy (besides, maybe, cranes and derricks), it has to be GHS – the Globally Harmonized System of Classification and Labeling of Chemicals. An international effort developed under the aegis of the United Nations, GHS seeks to promote a common criteria for classifying chemicals according to their health, physical and environmental hazards. OSHA is at the head of the effort in the United States on GHS because a new rule would affect its Hazard Communication standard.

OSHA published a long-anticipated Notice of Proposed Rulemaking on GHS in the Federal Register Sept. 30, saying it would be the first in a series of aggressive steps to get a rule on the books. In fact, OSHA is putting up GHS as a demonstration of a new day at the agency where important health and safety standards will make the light of day.

OSHA's Hazard Communication standard, 1910.1200, addresses hazards from both chemicals produced and imported into the workplace and governs the communication of those hazards to workers. Employers are required to maintain a hazcom program for workers, including making available material safety data sheets. The United States is among countries and international organizations that helped develop the GHS, which includes the use of universally recognized pictograms (right).

The European Union, China and Japan already have adopted GHS, while the United States has been mired in the regulatory process. Now that the proposed rulemaking has been published, OSHA is promising that following a 90-day comment period through Dec. 29 it will hold public hearings nationally during first quarter 2010 on how to phase in the standard.

OSHA published an Advance Notice of Proposed Rulemaking on GHS in Sept. 2006, an initial step to begin the process of seeking public comment. GHS long has been viewed widely in health and safety circles as a "feel-good" effort because both labor and industry agreed it was needed, but OSHA was not able to advance the rulemaking in 2007 or 2008 as it had indicated in its regulatory agenda.

MORE: OSHA guide on GHS.

Headline: Dr. Howard back at NIOSH
Perspective: It seems that the entire safety and health community – friend and foe alike -- is pleased as punch that Dr. John Howard has been restored to the helm of the National Institute of Occupational Safety and Health for another six-year term. Health and Human Services Secretary Kathleen Sebelius made the announcement on Howard Sept. 3. NIOSH is a sub-agency of the Centers for Disease Control and Prevention, which comes under HHS.

Despite wide protests, then-CDC director Dr. Julie Gerberding declined to reappoint Howard to the position in July 2008. It had been widely chronicled that Howard had drawn Gerberding’s ire during his first term for failing to support a controversial CDC restructuring plan that would have diminished NIOSH’s influence. A number of safety organizations, such as the American Society of Safety Engineers and American Industrial Hygiene Association, went so far as to appeal to former HHS Secretary Mike Leavitt to overrule Gerberding, but to no avail.

But in the end, Howard, who had headed California’s Division of Occupational Safety and Health, or CalOSHA, proved to be too popular and too valuable to NIOSH. He was such with progressives and conservatives and labor and industry. During the past year, Howard had remained on NIOSH’s payroll as coordinator for HHS’ critical programs on New York’s World Trade Center programs following the 9/11 terrorism.

During his first stint, Howard, both a medical doctor and lawyer, was credited with being a tireless advocate for improving responsiveness to NIOSH research through strong partnerships with labor and industry. He also has been a leading researcher to identify and address occupational hazards associated with nanotechnology and led the agency’s efforts on the concept of Prevention through Design as a way to institutionalize worker health and safety concepts.
MORE: My 2004 interview with Dr. Howard about NIOSH research on workplace driving.

Headline: OSHA’s Rescinds ‘de Minimis’ Policies in Steel Erection Standard
Perspective: This major change in policy is a big win for construction union activists, notably ironworkers, concerned about falls from elevation in the sector. In a directive issued Oct. 1, OSHA will not longer allow construction contractors to disregard the so-called 30-foot rule in the standard that let them to use their discretion in utilizing decked floors or nets within two stories or 30 feet if workers also wore fall protection.

The directive also changes requirements in the standard when workers use shear connectors, such as steel studs or bars, to bind I-beams to concrete. Union activists believe the change will decrease the potential for fall from tripping because floor decks will be required to be built before workers can install the connectors.

That OSHA issued the directive within a few months of the Obama administration taking office is telling politically. The policy giving contractors the option over decked floors and nets and where to connect I-beams was put into place in 2002, shortly after the start of the Bush administration.

Unions claimed the previous policy was too favorable to industry at the expense of safety, pointing to highly publicized deaths of construction workers during the period from during a spate of incidents at frenzied construction activity at the Strip in Las Vegas as part of the ambitious, multi-billion CityCenter hotel and casino project. More than a third of 1,204 construction fatalities in 2007 were attributed to falls, according to the U.S. Bureau of Labor Statistics.

Before the change, OSHA’s policy was to view the provision in the standard as "de minimis" – violations of safety rules that have no direct or immediate relationship to safety, health or property damage -- when the employer required that all workers be protected by fall protection. Now, OSHA’s policy is that use of 100 percent fall protection is not a basis for considering a failure to comply with these steel erection provisions as de minimis. Thus, if there is an incident, even with fall protection, scrutiny will increase.

MORE: OSHA's directive outlining the changes.

Headline: Feds Expect Employer Cooperation on H1N1
Perspective: While no federal regulatory standard compels employers to prepare their workplaces for possible H1N1 influenza outbreaks, smart employers are putting plans in place, even small firms. When it comes to public health issues like H1N1, OSHA has corralled the issue pertaining to the workers and believes it is the agency’s duty to provide leadership to the workplace component. It might seem the agency is stepping out the box of its mission, but it has taken a similar aggressive stances on other issues like emergency preparedness when they touch on the workplace.

So far, what employers have to go on are guidelines, which are not rooted in statute. But guidelines are like a subtle hint of sorts. The agency is expending considerable resources for outreach and information and expects employers to take heed and get with it. (Remember, there is something called the General Duty Clause in the OSH Act that virtually covers everything that OSHA standards do not).

On Sept. 30, OSHA presented a forum, "Workplace Preparedness: How Small Businesses Can Prepare for H1N1 Influenza," to help employers prepare for the potential impact the virus could have. In August, several federal departments, including Commerce, Health and Human Services and Homeland Security announced guidance for businesses to plan for and respond to the arriving flu season.

The guidance, issued by the Centers for Disease Control and Prevention (CDC), addressed employer plans, such as encouraging employees with flu-like symptoms or illness to stay home. Employers are encouraged to review sick leave policies and ensure employees understand them, according to the guidance, and should try to make sick leave policies flexible for workers who may have to stay home with ill family members or if a child's school is closed.

Clearly, these guidelines can cause substantial disruptions to workplaces, but employers need to act. Already, some public health advocates would prefer that OSHA issue an emergency temporary standard to ensure workers are being treated appropriately in the event of an outbreak.

MORE: OSHA page on H1N1.

•