On January 4, 2023, the Biden administration issued its Fall 2022 Regulatory Agenda, in which each federal agency announces its planned regulatory activity for the upcoming year. OSHA included several rulemakings CWS has been following and opposing, as well as two new items that are deeply concerning.
The agency is hoping to issue a rulemaking on heat illness prevention and plans to initiate a SBREFA panel in January. CWS submitted comments on the agency’s advanced notice of proposed rulemaking, cautioning OSHA against implementing a “one-size-fits-all” rule that “will not allow for specific industries and employers to continue to maintain their own individualized safety measures created for their particular operations and environmental conditions.”
OSHA’s proposed rulemaking would require electronic submission of employer summary data and individual employee injury and illness data. A final rule is targeted for March 2023. As CWS explained in our comments on the proposal, “OSHA’s proposed rule does not serve to prevent employee injuries or illnesses in the workplace. Instead, … electronic submission and public posting of this data serves only to put employers at risk for improper disclosure, mischaracterization of the data and release of sensitive employer as well as employee information.”
OSHA planned to initiate a SBREFA panel in December 2022. The rulemaking is in response to multiple petitions by unions for a standard. It remains to be seen how far the agency will go with its proposed regulations.
This rulemaking is derived from OSHA’s COVID-19 Emergency Temporary Standard for the healthcare industry. A final rule was targeted for December 2022. CWS filed comments on the ETS in April 2022, in which we raised several procedural concerns with the rulemaking.
Beyond these four regulations, OSHA is proposing two new, highly concerning regulations.
The rule is intended to “clarify the right of workers and certified bargaining units to specify a worker or union representative to accompany an OSHA inspector during the inspection process/facility walkaround, regardless of whether the representative is an employee of the employer, if in the judgment of the Compliance Safety and Health Officer such person is reasonably necessary to an effective and thorough physical inspection.” It appears to be an attempt to codify a February 2013 letter of interpretation issued by OSHA, which resulted in the agency being sued by the NFIB’s legal center. CWS also sent a letter in June 2013 to the agency on the interpretation outlining our concerns. OSHA rescinded the letter of interpretation on April 25, 2017. An NPRM is targeted for May 2023.
OSHA intends to adopt a regulation addressing the use of subpoenas during OSHA investigations “to provide helpful clarity to the agency and the regulated public on these issues, while promoting transparency and uniform subpoena practice across the agency.” An interim final rule is targeted for June 2023. This could be a very harmful change of policy depending on what is proposed.
CWS will be watching both of these new rulemakings very closely.