What to Expect from OSHA in 2023: Personnel and Policy Changes

By: Kevin Lombardo, Contributor

The construction industry has experienced a spike in work-related injuries and fatalities over the last year, which may partly explain the new pro-regulation approach.

We’re nearly halfway through 2023 and, after a tumultuous midterm election, employers are preparing for changes to workplace safety policy and regulation by OSHA. Here’s a rundown of what you can expect to see from OSHA for the rest of this year and into 2024.

New OSHA Leadership

The first thing to know is that Marty Walsh resigned from his position as the U.S. Secretary of Labor in February of 2023 to become the Executive Director of the National Hockey League. That means there’s a change in leadership coming at OSHA, and with it, a change in regulatory strategy.

Starting in March 2023, U.S. attorney Julie Su has served as the Interim Labor Secretary and, as of May, she has been officially nominated to fill the post permanently. Su is known primarily for her work in California, where she spearheaded a campaign to inform low-wage workers of their rights. Experts expect Su to focus on safety for low-wage workers if confirmed as Secretary of Labor.

A New Pro-Regulation Agenda

Current OSHA head and Assistant Secretary of Labor Doug Parker is expected to press forward with a pro-regulation strategy for enforcing workplace safety policies. A severely divided Congress means that legislation related to labor matters will be unlikely to pass and be signed into law, leading OSHA to attempt to address issues directly through regulatory policies.

For employers, this likely means that OSHA will introduce new proposed standards, new National Emphasis Programs and a Severe Violator Enforcement Program (SVEP) that aims to punish repeated infractions of safety regulations.

OSHA Responds to Spike in Construction Fatalities

Some of this activity can likely be attributed to current economic and labor conditions, with experts warning of a potential recession this year. Many industries are experiencing labor shortages, leading to a slower pace of work, as well as a heavier reliance on less experienced workers, temporary employees and subcontractors. This shortage is particularly severe in the construction industry.

The construction industry has experienced a spike in work-related injuries and fatalities over the last year, which may partly explain the new pro-regulation approach. Specifically, OSHA reported that there were 39 fatalities related to trenching at construction sites in 2022 alone—after 166 such deaths occurred between 2011 and 2018—averaging 21 deaths per year in that span. OSHA is expected to respond to these deaths by increasing its focus on safety training in the most affected categories of work. Regulators will also likely target employers in high-risk industries, with more inspections and more severe citations for employers found to be in violation of safety protocols.

OSHA Proposes New Rules Around Heat Risks

Heat-related incidents and illnesses have also become a target of OSHA’s attention in the last few years. Several areas of the U.S. have experienced significant heat events during the summer months, with regions such as the Pacific Northwest breaking long-held temperature records. Research published in Nature Communications in 2020 reported that heat waves have increased in frequency, intensity and duration since the 1950s. Workers around the world are feeling the effects.

In 2021, OSHA introduced a proposal for new heat standard rules, noting that workers in industries such as agriculture and construction face a high risk of heat exposure that can lead to serious injury and illness. Heat exposure can cause dehydration, heat exhaustion and heat stroke, along with damage to the internal organs and skin. Research has also found that heat can affect employee mental health. Workers in high-risk industries are more likely to visit emergency rooms as a result of heat. Notably, OSHA reports that jobs in the most high-risk fields for heat-related safety and health problems are held by workers of color.

As a result, employers can expect more inspections related to heat standards in the coming months. A large percentage of heat illness incidents occur at businesses with fewer than 10 employees, and OSHA has reported more inspections of employers in roofing, postal service, construction, landscaping, food service and warehousing. Employers should follow prior OSHA guidance and prepare for new regulations. Access to drinking water, cool-down areas, breaks, health monitoring, emergency response measures, heat illness prevention plans and adequate recordkeeping are all included in OSHA heat standard guidance.

OSHA HazCom Standard Updates

Following OSHA’s 2021 Notice of Proposed Rulemaking, the administration has made several changes to its Hazard Communications Standard:

• New classifications for aerosols, desensitized explosives and flammable gasses
• New labeling provisions for “small” and “very small” containers
• Updated several hazard and precautionary statements for clarity and precision
• Updated labeling requirements for packaged containers “released for shipment”
• Labels for bulk shipments of hazardous chemicals
• Trade secrets on Safety Data Sheets (SDSs) for chemical concentrations
• Section 2 of the SDS was updated to list hazards not required on the label
• Potential additions from GHS Revision 8

These new rules are expected to be finalized in 2023 and will be effective 60 days after publication. Chemical manufacturers, importers and distributors evaluating substances must comply within one year; those evaluating mixtures must comply within two years.

Process Safety Management Updates

OSHA is currently considering changes that would include:

• Oil- and gas-well drilling and servicing
• More employee involvement
• Stop-work authority
• Formal resolution of PHA recommendations
• Specific PHA considerations
• Audits and emergency planning

Updates to COVID-19 Rules

While there is an ongoing discussion between employer and employee advocates regarding the strictness of COVID-19 rules, some changes are in the pipeline. To start, the Office of Information and Regulatory Affairs (OIRA) will review the rules, which will not include a vaccine mandate. Labor unions are advocating for respiratory protections and updated ventilation systems to protect workers. Rule changes will include some previously excluded sites, such as retail pharmacies, dentist offices and medical clinics inside factories.

Infectious Disease Standards

While OSHA is currently prioritizing COVID-19 healthcare standards, they could soon turn to broader rule considerations. Previously, OSHA updated rules around infectious diseases to expressly cover COVID-19 and other dangerous pathogens. The administration has also announced a new plan to regulate more infectious diseases in the workplace, including tuberculosis, chicken pox/shingles, measles, SARS, MRSA and COVID-19.

The Main Takeaway: Expect More Inspections

In 2023, the chances of workplaces being inspected by OSHA (either planned or at random) are higher than in previous years. The administration is likely to serve subpoenas for documents and testimony, which employers can protest if the subpoenas are seen to be improperly broad or insufficiently justified. OSHA must file federal lawsuits in order to enforce subpoenas.

Reasons for the increased inspection rates include the new Severe Violator Enforcement Program, announced in January of this year. OSHA has stated that its priority here is “stopping employers from repeatedly exposing workers to life-threatening hazards of failing to comply with certain workplace safety and health requirements.”

General industry, agriculture, maritime operations and construction will be covered under this new program, which took effect on March 27, 2023. Here’s what OSHA will be doing differently when it comes to inspections:

• Instance-by-instance citations are used for serious safety rule violations. This rule supports citations for each instance of non-compliance, including:
• Lockout/tagout
• Machine guarding
• Permit-required confined spaces
• Respiratory protection
• Falls
• Trenching
• Violations specific to record-keeping
• Discouraging grouping of citations to focus on separate citations
• Fairfax Memo reinstatement:
• This means that unions will be able to name a representative (who could be a worker at the site) during OSHA inspections
• Agency sharing
• OSHA is likely to continue to utilize rules that allow federal agencies to partner to enhance rule enforcement. Joint investigations; information sharing; rules advising claimants of opportunities for charges with other agencies; and coordinated investigations between multiple agencies are likely to occur.

More Regulations, More Enforcement Activity

These changes boil down to increased regulations that put more pressure on employers to proactively comply with safety rules. Employers are likely to see more inspections, more subpoenas and more involvement from union representatives in safety matters.

[Note: This article is a summary of a presentation by Kristin White, Partner at Fisher Phillips, delivered on April 11, 2023, at CO ASSP.]

About the Author:

Kevin Lombardo, CEO & President at DORN Companies, is a widely recognized thought leader in workers’ compensation and Total Worker Wellness, with a focus on workplace injury prevention and on-site innovative therapy solutions. For Kevin’s original online article, visit https://tinyurl.com/4jzj8vsr .