OSHA has published new proposed guidelines for establishment of workplace occupational safety and health management programs (SHMP), with public comment accepted until February 22, 2016. A public stakeholder meeting is also planned for March 10, 2016, in Washington, D.C., at OSHA headquarters, but advance registration for participants is due by March 3rd. The proposal is posted on, and any comments can be submitted to, www.regulations.gov. OSHA also has a web page promoting the initiative that includes links to the documents and other information: www.osha.gov/shpmguidelines.
The move to publish new guidelines came after the Obama administration’s first priority OSHA rulemaking—the “Injury & Illness Prevention Program” (I2P2) standard—was first pushed to the back burner and then fell off the stove entirely based on the agency’s November 2015 regulatory agenda. Now, OSHA has opted against a binding rule, which many observed would have negated the need for OSHA to ever promulgate another standard because, under the I2P2 rule, all hazardous conditions threatening worker health or safety would have to be identified and corrected in order to conform with the requirements.
The new “voluntary” OSHA guidelines update and replace the agency’s voluntary Safety and Health Program Management Guidelines that were first published in 1989. The concept of continuous improvement is key to implementation of the guidelines. It’s a way to shift to a proactive safety management model, rather than being “reactive” by changing programs only after an accident has occurred, or basing evaluations of safety success simply by monitoring lagging indicators like experience modification rates. The bottom line is that it requires employers—with input from labor—to identify and correct hazards before they cause an injury or illness.
There are seven main subjects to address in a successful SHMP based on the revised guidelines:

  1. Management leadership
  2. Worker participation
  3. Hazard identification and assessment
  4. Hazard prevention and control
  5. Education and training
  6. Program evaluation and improvement
  7. Coordination and communication on multiemployer worksites

Under the multi-employer worksite section, OSHA’s proposal states: “employer must establish mechanisms to coordinate their efforts and communicate information to ensure that all workers on site and their representatives can participate in efforts to prevent and control injuries and illnesses, and that workers are afforded equal protection against hazards.” Therefore, in such a work environment, OSHA expects the host employer, contractor, subcontractors, and staffing agencies to commit to a SHMP and, before work starts, establish respective safety and health responsibilities, as well as procedures for coordinating the responsibilities and communicating safety and health information. The draft document is quite detailed about what OSHA expects contractors to do to ensure worker participation, addressing PPE and medical surveillance and assessment issues, and providing all needed training to workers.
The agency says the new guidelines proposal “builds on lessons learned about successful approaches and best practices under OSHA programs such as the Voluntary Protection Programs (VPP) and the Safety and Health Achievement Recognition Program (SHARP).” The guidelines are also consistent with many national and international consensus standards, such as the ANSI Z10 standard and several of the International Safety Organization’s (ISO) safety, health, and environmental management system guidelines. The proposed guidelines can also fit well into the SHMP required under the ANSI A10.33 consensus standard for managing safety and health programs at multi-employer construction projects.
The guidelines would not be binding in the same way that a formal rulemaking creates an OSHA standard that gets codified in Title 29 of the Code of Federal Regulations (CFR). Rather, these are supposed to fall into the category of non-binding guidance documents that the agency periodically issues, and which it can amend or rescind without any formal public notice.
The difference with the SHMP guidelines, however, is that these are more frequently becoming a binding part of OSHA settlement agreements. Particularly in cases where OSHA agrees to modify willful or repeat violations down to a “serious” category, or to modify a “serious” violation to “other than serious”—or where significant penalty reductions are agreed upon—OSHA will require the employer to adopt the SHMP guidelines company-wide as a condition of a settlement agreement.
Once inked by the employer, the agreement to implement a SHMP that meets OSHA’s guidelines becomes a binding part of the employer’s program, and if OSHA finds that the employer reneged on the agreement or has failed to maintain the SHMP, it can issue “failure to abate” penalties (and put the employer in the “Severe Violator Enforcement Program” where its citations and information are publicized by OSHA in press releases, and where OSHA will then do follow up inspections at up to 10 additional worksites of that employer). Therefore, agreement to adopt a SHMP should not be undertaken lightly, because this is not a simple task and requires continuous program oversight and improvement.
The key changes between the 1989 version and the proposed 2016 guidelines include:

  • A proactive approach to finding and fixing hazards before they cause injury, illness, or death
  • Improved safety and health in all types of workplaces
  • Help for small and medium-size businesses to effectively protect their workers
  • Increase worker involvement, so all workers have a voice in workplace safety and health
  • Better communication and coordination on multi-employer worksites

As noted above, the guidelines are not a new standard or regulation and do not create any new legal obligations or alter existing obligations created by OSHA standards or regulations, unless agreed to as part of a settlement. However, it remains to be seen whether OSHA will try to impute knowledge of these requirements to employers in the future, for purposes of enforcement through the General Duty Clause, Section 5(a)(1) of the 1970 Occupational Safety & Health Act.
Because these guidelines always have the potential to become a binding I2P2 rule in the future, depending on the outcome of the presidential election later this year, contractors are encouraged to review the 44-page document now in terms of how it will impact their business and with an eye toward feasibility of implementation. ■
About The Author: Adele L. Abrams, Esq., CMSP, is an attorney and safety professional who is president of the Law Office of Adele L. Abrams PC, a ten-attorney firm that represents employees in OSHA and MSHA matters nationwide. The firm also provides occupational safety and health consultation, training, and auditing services. For more information, visit www.safety-law.com.
Modern Contractor Solutions – February 2016
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