June 29th, 2017 Are Changes in Store at OSHA? The change of administrations in Washington, D.C., has triggered many questions over the future direction of the Occupational Safety and Health Administration (OSHA). The worker safety agency has always focused closely on the construction industry, which accounted for 21.4 percent of all fatal workplace injuries in private industry in 2015. That’s a higher number of workplace fatalities than any other sector of the economy. Regulatory Relief? With regulatory relief one of the prominent pillars of the Trump presidential campaign, many are looking to the new administration to roll back some recent OSHA rulemaking they regard as regulatory overreach. The challengers achieved an early victory in April when the president signed a congressional resolution to repeal OSHA’s so-called “Volks” rule. The Volks rule extended OSHA’s ability to enforce employers’ injury record-keeping requirements from six months to five-and-a-half years. Opponents argued the five-year extension would do nothing to improve workplace safety, but would merely lead to additional red tape and litigation. After both the House and Senate approved a resolution nullifying the rule, President Trump’s signature made it final. Just a few days later, OSHA delayed enforcement of another controversial initiative: the Crystalline Silica Standard for Construction. OSHA estimates 2.3 million workers are exposed each year to crystalline silica dust, which is generated when bricks, mortar, concrete or stone are cut or ground. The new OSHA standard would establish a much lower permissible exposure limit for construction workers – eight times lower than the existing standard. The new standard was scheduled to go into effect June 23, 2017, but on April 6 OSHA announced it was delaying enforcement until September 23. The stated reason was to allow OSHA to “conduct additional outreach” to the industry, as well as to provide additional time to train compliance officers. But the delay also will give opponents additional time to argue against its enactment. They question both the need for the rule and the feasibility of some of the new requirements, which are expected to cost the average workplace about $1,524 a year. Pending Challenges Meanwhile, several other controversial OSHA initiatives are proceeding on schedule. At press time, a new rule requiring many employers to electronically submit information about workplace injuries and illnesses to an OSHA-operated website was still in effect. This was in spite of several pending court challenges from employer organizations and industry groups including the National Association of Home Builders. The electronic submission rule also contains provisions designed to prevent employers from taking retaliatory measures against employees who report accidents. But employers contend the rule unlawfully limits their ability to conduct incident-based safety incentive programs or conduct routine post-accident drug testing. Under the new rule, such practices could be interpreted as retaliatory actions. As a result, the opponents argue, the new rule will actually make workplaces less safe. While it is not yet clear how these legal challenges will ultimately fare, a federal court has ruled the initial electronic reporting deadline of July 1, 2017, can remain in effect while the cases continue. Rising Costs Despite challenges to some rules and the possible rollback of others, OSHA compliance and the rising costs of noncompliance continue to be significant concerns in the construction industry. In 2015, Congress required federal agencies to adjust their civil penalties to account for inflation. As a result, OSHA’s maximum penalties, which had last been adjusted in 1990, increased by 78 percent, and now are readjusted annually. The penalty for serious violations is now $12,675 per violation, while the penalty for willful or repeated violations can be as high as $126,749 per violation. Naturally, most contractors’ primary worker safety concern is the desire to run a safe job site. But the rising costs of OSHA fines must also figure into your decision-making. If you have questions about OSHA or other regulatory compliance issues, please call us at 401-331-0500.