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November 2, 2010

OSHA Holds Stakeholder Meeting on Injury and Illness Prevention Programs

The ACTA Group

On Monday, July 20, 2010, the U.S. Occupational Safety and Health Administration (OSHA) held the fourth of five scheduled Injury and Illness Prevention Program (I2P2) stakeholder meetings. OSHA held the informal, information-gathering meeting for all interested parties as part of its development of a rule intended to reduce injuries and illnesses in the workplace by proactively addressing workplace safety and health hazards in a systematic way. The stakeholder meeting attendees included approximately 50 participants representing government, industry, standards-developing organizations, research or testing agencies, unions, trade associations, insurance, and consultants. More information is available online.

Dorothy Dougherty, the Director of the Directorate of Standards and Guidance (DSG), offered welcome remarks, and Michael Seymour, OSHA/DSG, offered opening remarks. The meeting agenda focused on the following major points:

  • Possible Regulatory Approaches:
    • 1989 Guidelines;
    • State standards; and
    • ANSI Z10/AIHA Z9.10-2005 and OHSAS 18001.
  • Scope and Application of a Rule:
    • Covered industries; and
    • Covered employers (size, high/low injury rates).
  • Organization of a Rule:
    • Regulatory text;
    • Mandatory or voluntary appendices;
    • Core element based; and
    • Plan, Do, Check, Act.
  • Economic Impacts:
    • Foreseeable costs;
    • Approaches to minimize cost; and
    • Effectiveness.

Possible Regulatory Approaches

OSHA asked stakeholders to respond to the following questions and to consider the history of safety and health management programs during the development of the standard:

  • What did OSHA do right in prior initiatives?
  • What did OSHA do wrong?
  • What experiences have you had with OSHA’s voluntary Safety and Health Program Management Guidelines, VPP, SHAPR, state standards, ANSI Z10, or OHSAS 18001?
  • What are the advantages and disadvantages of adopting such a rule?

Below are some of the comments provided by stakeholders during the meeting. Each comment is categorized by a specific I2P2 rulemaking issue:

Management Programs versus Technical Standards:

  • Employers want the OSHA standard to be specific about what they are required to do and how to do it. Small businesses are ill-equipped to meet non-specific, performance-based standards.
  • Participants familiar with California’s standard suggested that the OSHA standard be performance-based, which would allow employers with existing programs to comply with OSHA’s requirements.
  • The OSHA standard should focus on identifying, controlling, and eliminating hazards. There is concern that the OSHA standard might encourage or greatly increase behavior-based safety approaches that only look at the behavior of the employee instead of the presence and control of the hazards.

Other Standards and Programs:

  • Several participants praised the effectiveness and simplicity of the “plan, do, check, act” model from ANSI Z10 and suggested that this tool be part of the OSHA standard. Elements of the ANSI Z10 standard were viewed by some employers as difficult, however, such as planning, communication, and employee participation. When implementing a program, the planning stage is often rushed through to the “act” phase, with the focus on the end goal. Employers are not used to the need for continuous updates and improvements to their programs, which are concepts of the ANSI Z10 standard.
  • OSHA mentioned that it would consider grandfathering existing programs that have proven effective. It has made no decisions regarding the terms of such a comparable or effective program.
  • California officials informally provided suggestions on how to improve their standard, including providing distinct directives on job hazard analysis, a clear explanation of the term “regularly scheduled,” a strict requirement of employer’s definition of “near misses,” addition of the root cause analysis concept, a requirement of hierarchy controls, and a requirement of face-to-face training.

Underreporting of Incidents and Near Misses:

  • Participants agreed that the OSHA rule should prohibit employers from implementing programs that discourage reporting incidents of injury and illness and near misses. It was mentioned that some employers’ policies directly or indirectly reward workers for reducing or avoiding workplace incidents.
  • A participant offered that allowing OSHA to promote programs that allow management to introduce injury discipline programs as a response to workplace injuries will lead to underreporting.
  • A new Federal Aviation Administration rule was cited that precludes management from disciplining aviators and controllers who report their mistakes and near misses.

Objectives of the Standard:

  • California has been effective in addressing hazards in such high-risk industries as the health care industry, which are in need of the I2P2 rule. Participants are hopeful that the federal standard will be equally as effective.
  • OSHA stated that it wants to develop an I2P2 that all employers can implement without altering programs that are currently working effectively.
  • Participation by employees in an I2P2 is culturally-driven and a change in the workplace culture does not occur quickly. The OSHA standard should emphasize the integration of safety into the culture of the workplace as its primary objective.

Defining a Program’s Effectiveness:

  • It was recommended that the OSHA rule not use lagging indicators to measure a successful I2P2, but include leading indicators, along with a focus on effective hazard assessment as a success indicator.

Enforcement of an Injury and Illness Prevention Program Standard:

  • Stakeholders expressed interest in OSHA’s enforcement plans and how OSHA would define a violation of the rule.
  • A participant mentioned that the employer inspection method used by enforcement officers should be based on specific requirements instead of more abstract performance-based requirements. It was suggested that the OSHA rule require employers to obtain consistent data on safety, behavior, and hazards while allowing inspection based on a performance-based standard.
  • OSHA mentioned that a mandatory I2P2 rule is currently being considered that will be enforceable by OSHA inspectors.

Other Issues:

  • A participant suggested a way to maximize the effectiveness of the existing OSHA standards by not requiring employers to develop extremely lengthy programs.
  • OSHA mentioned that it would not file an Advance Notice of Proposed Rulemaking (ANPR) for the I2P2 rule in light of the abundance of information and dialogue provided in these stakeholder meetings.
  • In pursuit of OSHA’s workplace safety goal, all allegations of violations of the I2P2 rule should be posted regardless of outcome, so that employers and employees have equal responsibility under I2P2.

Scope and Application of a Rule

OSHA emphasized the need to hear participants’ opinions about making sure that the reach of an I2P2 rule is not so broad that it does not touch on all workplace hazards, and also be focused enough not to lose the effectiveness of the rule. OSHA presented the following questions to stakeholders:

  • What would be an appropriate approach to the scope of the standard?
  • What industries and employers should the standard cover?
  • Should certain occupational hazards be limited by the rule?

Some of the comments made during the discussion were:

Industries and Employers the Standard Should Cover:

  • Participants overwhelmingly stated that the rule should apply to all employers, no matter the industry or size. Also, participants mentioned that hazards can occur at any workplace. It was also noted that different numbers of employees can work for an employer according to the time of year.
  • A tiered approach OSHA standard was suggested. It was suggested that smaller employers with limited resources be exempt from some of the requirements of the rule. A suggestion was made for a voluntary section of the rule that would recognize and reward certain employers for their commitment to an I2P2.
  • Stakeholders stated that the OSHA rule should distinguish between the levels of multiple employers at a single workplace, such as prime and subcontractors.

Other Standards and Programs:

  • Participants offered that California has developed model programs that can be used by all sizes of employers, and that OSHA could use these programs as a reference tool when considering which elements to add to its rule. OSHA responded that providing model programs could make it more likely that employers would copy model programs instead of implementing or updating their own program. Stakeholders added that practices should not concern OSHA, since enforcement inspectors will be determining whether employers are adhering to an OSHA rule.
  • A participant stated that the OSHA rule should parallel the requirements of the California standard and noted that there are exemptions within the standard for employers with ten employees or fewer. According to this participant, there should not be an exemption based on size, since hazards can occur in small workplaces.

Reporting Requirements:

  • Several participants mentioned their concern that OSHA should not seek injury and illness rates to determine the success of an employer’s I2P2 due to tremendous underreporting.
  • Stakeholders emphasized the value of near-miss reporting. By studying near-miss events, employers learn the shortcomings of the I2P2, which can allow improvements prior to an injury or illness event.
  • Some stakeholders mentioned that employers offer incentives to employees for filing incident or near-miss reports, and recommended that the OSHA rule contain provisions that encourage reporting. Stakeholders stated that the effectiveness of an I2P2 becomes drastically diminished when reporting is discouraged by an employer.

Organization of a Rule

Bryan Seal, OSHA/DSG, presented the third topic of how the organization of an I2P2 rule would look to facilitate the compliance of the rule with employers and industries. Mr. Seal presented the following questions to stakeholders in regard to organization of a rule and the incorporation of the following six primary elements in the standard: (1) management duties; (2) employee participation; (3) hazard identification and assessment; (4) hazard control; (5) education and training; and (6) program evaluation and improvement.

  • Are these core elements an effective foundation for this standard?
  • What should the overall standard look like?
  • What would be useful additional tools or appendices?
  • Do you have successful tools or guidance that can assist employers in compliance with the standard?

Comments made during the discussion included:

Management Duties:

  • Stakeholders mentioned that the key to success of an I2P2 is management leadership and that all other elements should align accordingly with a commitment from management. It was suggested that OSHA clearly state the required duties of management.

Employee Participation:

  • Some participants stated that OSHA standard should include guidelines to ensure employee awareness of and participation in an I2P2. Some participants further suggested a need for accountability by management of any violations to the I2P2.
  • Stakeholders stated that the OSHA rule should place equal weight on employee involvement and management commitment. Stakeholder also suggested that employees be involved in the process of planning and decision-making, based on the employees’ understanding of the impact that such a program will have on hazards in the workplace.
  • Some participants suggested that an I2P2 underscore participation of employees often neglected in the program, such as temporary, contingent employees, or day laborers. These employees should have a method to report and control workplace hazards.

Hazard Identification and Assessment:

  • Stakeholders suggested that the effectiveness of the OSHA rule would be increased if there was a requirement stating that management, supervisors, and employees work together to develop the program.
  • Some stakeholders stated employers be required to perform risk-based assessment surveys. Stakeholders stated that since all hazards are not equal, the OSHA rule should include a method that allows employers to reasonably allot limited resources to focus on the most substantial hazards.

Education and Training:

  • Stakeholders recommended that the OSHA rule include training for temporary and contingent workers, even if the training requirements are different from those of the full-time employees.
  • A participant suggested that the first issue mentioned in safety training be hazard identification and control. Employees who have an understanding of the hierarchy of risk assessment can safely recognize and address hazards accordingly.
  • Some participants mentioned that training should be performance-based with an understanding of training materials, not based on watching a video or proving attendance at a class.

Program Evaluation and Improvement:

  • Participants mentioned that an evaluation of an I2P2 be documented in writing.
  • Stakeholders stated that to convey the benefit of setting an I2P2 goal and improving safety to its employees, employers should consistently post an evaluation metric of the I2P2.

Additional Elements to Include:

  • Participants asked OSHA to provide program development tools and guidance documents that small employers will need due to lack of resources to hire safety professionals.
  • Stakeholders suggested that the use of unions as well as hand-held translators or online translation tools be included in the rule to overcome literacy and language barriers. These tools will help facilitate an understanding of the elements of the rule by all employees.
  • Some participants stated that the OSHA rule include voluntary appendices that are more easily understood and gives less-savvy employers a starting point.

Other Standards and Program:

  • Stakeholders cited specific materials, such as the Department of Energy’s 10 C.F.R. Part 851 rule, which includes a model implementation guide, and gives suggestions for encouraging employee involvement; Appendix A of the Army Corps of Engineers 385-1-1 Safety and Health Requirements Manual; and the HAZWOPER standard developed by the National Institute of Environmental Health Sciences, which includes a non-mandatory appendix with minimum criteria for training requirements.
  • A stakeholder mentioned that some employers subject to the California standard kept inadequate documentation. This stakeholder expressed the importance of clear and comprehensive documentation for a performance-based I2P2 rule, especially as a reference during inspections.
  • A stakeholder suggested that the OSHA rule highlight its relation to preexisting standards, such state I2P2 standards, or industry-specific standards.

Economic Impact

Bob Burt of the Office of Regulatory Affairs introduced the final topic of economic impacts from an I2P2 rule. OSHA is required to show that its regulations are economically feasible. To facilitate the Office of Management and Budget’s (OMB) review, OSHA uses cost-benefit analysis to weigh the economic impacts of regulations. Consequently, OSHA sought stakeholder input regarding the potential costs and benefits of an I2P2. Mr. Burt asked stakeholders to refer OSHA to any specific sources of cost or benefit data and presented the following questions to stakeholders:

  • What are the costs of starting and maintaining an I2P2?
  • What would be the incremental cost to businesses that already have implemented an I2P2?
  • What approaches could be used to minimize costs?
  • What kind of impact would this standard have on small businesses?
  • How can the benefits or the effectiveness of an I2P2 be measured?

Comments made included:

Assessing Costs:

  • A participant with knowledge of an I2P2 mentioned that it can take an employer 12 months to implement a program if there is a dedicated employee overseeing the effort. If a company does not have such an employee, implementation can take up to 18 to 24 months.
  • A stakeholder stated that OSHA should speak to insurance companies that may possibly provide information on potential savings afforded by an I2P2. This stakeholder cautioned OSHA when obtaining cost data from existing programs because OSHA’s rule may contain different I2P2 requirements.

Small Businesses:

  • A stakeholder mentioned that OSHA should consult with small businesses subject to the California standard regarding the initial and ongoing costs that resulted from the state standard.
  • A participant suggested that OSHA should convince small businesses that an I2P2 can be cost effective. A participant stated that small businesses with no injuries will incur costs, but will not see tangible benefit.

Cost-Effectiveness and Costs vs. Benefits:

  • A stakeholder suggested that OSHA should strive for a lower-cost standard, even if it reduces the benefits. This stakeholder stated that OSHA should direct its resources to higher-priority areas, since OSHA cannot address all safety and health issues in a single rule.
  • One participant recommended that OSHA consult with employers, like those in California, that have long-standing programs in place, because they might have more information on the long-term costs and benefits of an I2P2.
  • A participant mentioned that in determining the benefits of an I2P2, OSHA should be cautious of low incident rates, which could result from discouraged reporting. This participant stated that OSHA should also be cautious of the benefits afforded by behavior-based safety programs, because these programs do focus on hazard identification.

Closing Remarks

OSHA thanked the participants for their discussion of the I2P2. OSHA emphasized that the stakeholder input would greatly help it formulate the standard. Interested parties can provide documents and other information to OSHA. Any information used by OSHA in the preamble will be added to the docket.