8 Things to consider from OSHA and MSHA in 2018

Civil Engineers At Construction Site In Winter

It’s that time of year again: for employers to celebrate the successes of the prior year and make plans and resolutions for the new one.  With OSHA and MSHA are making New Year’s resolutions, too, and employers are well-advised to consider what actions these federal safety agencies may take in 2018 that could affect their businesses.

Here are eight things employers should expect from the Occupational Safety and Health Administration (OSHA) and Mine Safety and Health Administration (MSHA) in 2018:

  1. Current Weather Precautions.  With record breaking temperature drops, OSHA is urging all those involved in snow removal and cleanup to take precautions and focus on safety. Workers performing snow removal operations may be exposed to serious hazards, including slips and falls while walking on snow and ice, falls from roofs and roof edges, through skylights, or from aerial ladders and lifts. Workers may also be injured by a roof collapse.  Other storm recovery work hazards include being struck by vehicles, carbon monoxide, hypothermia, and being injured by powered equipment. Learn more about workplace safety tips to stay aware of potential weather hazards during the cold.
  2. Potential  Budget Cuts. It should be no surprise that OSHA and MSHA may face budget cuts, as proposed by the Trump Administration. With Democrats focused on funding the Child Health Insurance Program, stabilizing the Affordable Care Act’s insurance markets, and enacting protections for Dreamers in budget negotiations, Republicans are in a position to either cut OSHA and MSHA’s budgets or keep them stable.
    Mine Safety and Health Administration (MSHA):
  3. MSHA’s Workplace Examination Rule Remains in Flux. MSHA published its final rule on Examinations of Working Places in Metal and Nonmetal Mines on January 23, 2017.  The rule, which includes five specific requirements regarding the timing, notification, and manner of examinations, was originally set to take effect on May 23, 2017 but has been postponed repeatedly. Most recently, on September 12, 2017, MSHA sought to delay the effective date of the final until March 2, 2018.
  4. MSHA’s Backdoor Inspections. MSHA may conduct a second inspection of the workplace through the discovery process in FMSHRC proceedings.  FMSHRC Rule 58(c) allows parties to request entry or inspection of premises as part of the discovery process. MSHA recently has attempted to use this rule to get a second look at the employer’s workplace.
  5. MSHA’s Use of Section 110(c) Actions and Special Investigations. During the Obama Administration, MSHA made special use of its Special Investigations Department and enforcement of Section 110(c) of the Mine Act regarding knowing and willful violations.  This aggressive process, which has included the threat of imposing civil penalties on individual miners, has led to heightened distrust of the mining industry toward MSHA.  Employers can expect that Assistant Secretary Zatezalo will seek to rebuild MSHA’s relationship with the industry, in part by curtailing the use of Section 110(c) actions.
    Occupational Safety and Health Administration (OSHA):
  6. The Silica Standard (will it be enforced). OSHA issued its final rule on Occupational Exposure to Respirable Crystalline Silica on March 25, 2016.  The final rule established a new eight-hour weighted average permissible exposure limit of 50 µg/m3 for all covered industries.  As a result, OSHA revoked its National Emphasis Program on silica and is in the process of adopting new procedures for enforcement of the new standard.
  7. OSHA’s Electronic Reporting Rule. OSHA has issued a final rule that revised its recordkeeping and submission requirements to include electronic reporting of injuries and illnesses to OSHA for posting on OSHA’s website.  The rule was initially set to take effect on January 1, 2017, but has been delayed repeatedly to the latest date of December 15, 2017.  With the Trump Administration’s more business-friendly stance on regulations generally, employers may expect to see the rule delayed further. We expect the next delay may be announced shortly after Scott Mugno’s confirmation as the head of OSHA (nominated in October 2017).
  8. Walking Working Surfaces. OSHA issued a new walking working surfaces rule that became effective on January 17, 2017.  Although the rule went into effect last January, many provisions of the new standard have delayed effective dates, including provisions regarding training (Mary 17, 2017), testing and certifying anchorages (November 20, 2017), and installing fall arrest and ladder safety systems on existing and new fixed ladders (November 19, 2018).  Employers should begin to make plans regarding how to comply with the new fall safety systems requirements by the November 19, 2018 effective date.

It is uncertain to know how the two federal safety agencies will take action in 2018, but based on what we’ve seen, OSHA and MSHA likely will continue to refocus their efforts on consultation and high-hazard enforcement.