OSHA kicked off the New Year by reaffirming its commitment to the development of an Injury and Illness Prevention Program standard, commonly referred to as I2P2. The new standard would require all employers to develop and implement a plan that systematically identifies hazards in the workplace, and then establish means and methods to eliminate those hazards. At first blush, such a standard might sound like a good thing, and in fact, many employers already have implemented their own program. Problems arise when OSHA wants to mandate safety and health programs. The most significant risk to employers from a mandatory program would come from the enforcement of the I2P2 standard. In the event of an accident, OSHA will undoubtedly take the position that if the employer’s plan had been adequate, the accident would not have occurred, and the result could be stiff penalties and harsh press releases. Additionally, I2P2 appears to be a way to back-door rulemaking for an ergonomics standard. Under the I2P2 standard, OSHA would no longer need an ergonomics standard. Instead, the employer would be required to address ergonomic hazards, and the failure to do so would be a violation of the I2P2 standard.

In a much anticipated move, on January 6, 2012, OSHA took the first step toward rulemaking. OSHA notified the Small Business Administration (SBA) that it intends to convene a small business review panel within 60 days. A small business review is statutorily required before OSHA publishes a proposed rule. During this 60-day period, the SBA will assemble a panel of representatives consisting of small business representatives, and OSHA will prepare the materials that will be provided to the panel. Those materials will become publically available once the panel is formally convened. After the panel is formally convened, it will have 60 days to provide OSHA comments (usually in the form of conference calls) and then prepare and submit a final report to OSHA.

OSHA also recently released a white paper supporting its position on injury and illness prevention programs. The white paper claims that “research demonstrates that such programs are effective in transforming workplace culture; leading to reductions in injuries, illnesses and fatalities; lowering workers’ compensation and other costs; improving morale and communication; enhancing image and reputation; and improving processes, products and services.” U.S. Department of Labor, OSHA, Injury and Illness Prevention Programs White Paper (January 2012) at p. 5. This claim is somewhat inconsistent with public statements made by NIOSH Director, Dr. John Howard, who has stated that there is very little empirical evidence on the effectiveness of mandatory safety and health programs in reducing injuries and illnesses.

In fact, the RAND Corporation recently conducted a study on the effectiveness of the California injury and illness prevention program regulation, and whether California employers that have been inspected and are in compliance with the regulation actually have lower injury and illness rates. A draft report was issued on October 26, 2011 and can be found online at http://www.dir.ca.gov/Chswc/info_bulletins/2012/Info_Bulletin2.html. While this draft presents only preliminary research and findings, it does suggest that California’s injury and illness prevention program regulation has had little impact on fatalities, and more broadly, that such programs do not improve safety.

Despite being a key initiative of OSHA political officials, the development of an I2P2 standard faces a long and contentious uphill battle, and with the upcoming Presidential election, the standard’s fate is not certain.

The MSHA/OSHA Report is not a comprehensive newsletter and does not cover a full spectrum of agency news. Rather, it focuses on one or more selected items of particular interest.

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