Why You Shouldn't Put Off Your Safety Initiatives, Even When OSHA Rules are Delayed

Just because some rules are delayed doesn't mean they're off the table. In fact, many experts believe they will still move forward, possibly in their current form.

• By Jamie O'Neill
• Aug 09, 2017

One of President Trump's promises during his election campaign was to undo federal regulations that had been put in place over the previous eight years. In the first six months of 2017, the new administration has taken several steps to make good on this promise.

On the worker safety front, we've seen a variety of delays, rollbacks, and other moves to rescind new OSHA rules, some of which were years or even decades in the making.

• In March, the effective date for OSHA's new beryllium rule was delayed for the second time,¹ and in June the agency issued a new proposal to revoke certain provisions of the rule for the construction and shipyard industries.²
• In April, OSHA delayed enforcement of the silica rule for the construction industry.³
• Just a few weeks ago, OSHA proposed a further delay of the compliance date for its new electronic recordkeeping rule.⁴
• And on July 20, OSHA released a spring regulatory agenda that did not include the combustible dust standard that's been in the works since 2009.⁵

These may not be the last delays we see as the federal government continues to focus on changing policies they see as overly burdensome to business.

However, these delays shouldn't be viewed as license for the affected industries to put worker safety on the back burner, and they shouldn’t prevent companies from acting now to prevent exposure to workplace hazards. This article explores several reasons companies should continue to prioritize implementing their safety plans, even if it's not required by law.

Progress on Worker Safety Isn't a Straight Line, But It Still Moves Forward
It may seem like worker safety initiatives have taken some steps backward over the past few months, but progress has never been a straight line. OSHA's own history shows us how true this is.

Congress passed the Occupational Safety and Health Act in 1970, following three years of bitter struggle, which included arguments and delays similar to what we're seeing now.⁶ The bill that Nixon eventually signed represented a compromise that was supported by Republicans, Democrats, business, and labor groups alike.

The point is that just because some rules are delayed doesn’t mean they're off the table. In fact, many experts believe that they will still move forward, possibly in their current form.

For example, workplace safety labor and employment attorney Howard Mavity told Business Insurance that he doesn't see the beryllium rule as vulnerable because it isn't particularly disruptive. "Although there were industry groups that attacked it, there was also decent cooperation between the main manufacturer of beryllium and steelworkers,"⁷ he noted, adding that some employers may not like the beryllium rule, but that likely won't be enough to stop it.

The same thing can probably be said about the silica dust rule and other OSHA regulations that are being contested. There may be additional delays. But if history is any indication, even with these fits and starts, worker safety laws will move forward. And companies that prioritize safety initiatives now will find themselves in the best position to deal with the regulatory environment of the future.

OSHA Can Issue Fines Even Without Standards in Place
OSHA currently doesn't have a combustible dust standard. The agency started taking preliminary steps toward developing a standard in 2009. But further action has been delayed multiple times, and the standard was recently removed from the agency's regulatory agenda entirely, signaling that it could be some time before a final rule is in place.

However, this doesn't mean employers can't be cited for combustible dust violations. As Nilfisk Application Engineer Stephen Watkins wrote in this publication earlier this year, the idea that no standard means no fines is one of the biggest misconceptions about combustible dust.⁸

OSHA issued its directive on the Combustible Dust National Program in 2007 and reissued it in 2008 "to intensify its focus on this hazard."⁹ According to the directive, facilities that contain combustible dust, and have allowed it to accumulate to a hazardous level can be cited under several sections of the Code of Federal Regulations (CFR), including:

• 29 CFR 1910.22—General requirements (housekeeping)
• 29 CFR 1910.176(c)—Housekeeping in storage areas
• 29 CFR 1910.272—Grain handling facilities
• 29 CFR 1910.307—Hazardous (classified) locations

Even workplaces not covered in the indicated sections of the CFR can still be cited for combustible dust under the General Duty Clause of the OSH Act of 1970.¹⁰ This clause holds employers responsible for providing workplaces free of recognized hazards that can cause death or serious physical harm.

The fines associated with these violations aren't small. Between October 2015 and September 2016, OSHA issued more than $1.8 million in penalties related to CFR 1910.22 alone.¹¹ And that was largely before the 78 percent increase in maximum penalties that went into effect last August.

With OSHA fines set to grow on an inflation-adjusted basis from here on out, the cost of compliance is becoming a bargain compared to the penalties for violations.

It's also important for employers to understand that OSHA penalties aren't the only financial ramifications of allowing combustible dust to accumulate. Insurance companies take this hazard into account when determining premiums and fire marshals rely on NFPA codes, such as NFPA 652: Standard on the Fundamentals of Combustible Dust, when performing workplace safety inspections.

Improving Safety Is the Right Thing to Do, For Your Bottom Line and For Your Talent Pipeline
Finally, even in the absence of regulations, safety should always be a top priority. If you can implement engineering controls or provide PPE to save your workers from exposure to hazards, you should. It’s the right thing to do.

This isn't just an appeal to emotion. Doing the right thing in terms of safety will have a positive effect in many areas of your business, including boosting your bottom line. It can also give you a competitive advantage for attracting, hiring, and retaining top talent, which is something many companies are struggling to do right now.

Let's look at some evidence that backs this up:

• Safety is tied to worker engagement. In 2016, Gallup did a meta-analysis of 1.8 million employees representing 230 organizations across 49 industries.¹² They found, among other things, that organizations with "top-notch safety cultures" had more engaged employees. In particular, employees were committed to doing quality work, felt that their job was important, and felt like they had a voice. In contrast, Gallup notes that “an unsafe workplace can have far-reaching effects,” including loss of productivity, as well as higher insurance premiums and other financial consequences.
• Millennials want to work at organizations that care about purpose and people. Competition for Millennial workers is very high, especially in industries experiencing talent shortages. But Millennials want more from their employers than just a paycheck. According to a 2016 Deloitte survey, 87 percent of Millennials believe that business success goes beyond financial results.¹³ When asked about what values contribute to long-term success, the most common answer, accounting for 26 percent of responses, was "employee satisfaction, loyalty, and fair treatment."

The manufacturing and processing industries are increasingly having to compete with tech for talent. And while industrial processors may not be able to offer gaming lounges, catered meals, or on-site health care,¹⁴ they can provide employees with the security of a safe place to work.

The regulatory environment now is different from what it was a year ago, and a year or two from now it could be different still. But that shouldn't stop companies from implementing the safety measures necessary to keep their workers safe. The benefits of doing so are significant, as are the consequences of failing to take action.

References
1. OSHA National News Release. US Labor Department announces delay in beryllium rule effective date.
2. Federal Register. Occupational exposure to beryllium and beryllium compounds in construction and shipyard sectors.
3. OSHA National News Release. OSHA to delay enforcing crystalline silica standard in the construction industry.
4. OSHA National News Release. US Labor Department's OSHA proposes to delay compliance date for electronically submitting injury, illness reports.
5. Nilfisk Industrial Vacuum Blog. OSHA removes combustible dust standard from regulatory agenda. http://news.nilfiskcfm.com/2017/07/osha-removes-combustible-dust-standard-regulatory-agenda/
6. U.S. Department of Labor. The job safety law of 1970: Its passage was perilous.
7. Business Insurance. OSHA's beryllium rule unlikely to be reversed.
8. Occupational Health & Safety. What you don't know about combustible dust, but should.
9. OSHA. Combustible Dust National Emphasis Program (Reissued).
10. OSH Act of 1970. Section 5. Duties.
11. OSHA. Industry Profile for OSHA Standard 19100022.
12. Gallup. Engaged workplaces are safer for employees.
13. Deloitte. Millennials want business to shift its purpose.
14. Forbes. 13 tech companies that offer cool work perks.

This article originally appeared in the September 2017 issue of Occupational Health & Safety.