Injury and Illness Prevention Program
June 29, 2010
Meeting Summary Report
Table of Contents
2.0 Opening Remarks
3.0 Administration of Meeting
4.0 Key Points From Group Discussion
4.1 Possible Regulatory Approaches
4.2 Scope and Application of a Rule
4.3 Organization of a Rule
4.4 Economic Impacts
4.5 Additional Comments
5.0 Closing Remarks
This report summarizes the key points made during the June 29, 2010, Injury and Illness Prevention Program stakeholder meeting conducted by the Occupational Safety and Health Administration (OSHA). The meeting took place from 8:30 a.m. to approximately 4:00 p.m. at the Hilton Washington Embassy Row in Washington, D.C. Its purpose was to obtain information from a diverse range of stakeholders that could be used to help develop an Injury and Illness Prevention Program rule, which will reduce workplace injuries and illnesses by requiring employers to implement injury and illness prevention programs. These programs would use systematic approaches to proactively address safety and health hazards.
A notice of the stakeholder meeting published in the Federal Register (Volume 75, Number 85, pages 23,637-23,640) on May 4, 2010, informed potential attendees that pre-meeting registration was required. The notice also briefly summarized injury and illness prevention programs and current standards, outlined the topics for meeting discussion, and explained meeting logistics (e.g., number of attendees that can be accommodated, meeting times and location). The Washington meeting was the third of three (later expanded to five) scheduled an Injury and Illness Prevention Program stakeholder meetings. Attendees were designated as either participants or observers. In total, 31 participants and 42 observers attended the meeting. Participants were seated along with OSHA representatives in a roundtable format. Observers occupied rows of chairs behind the participant area.
Participants included employer, industry, and labor representatives; consultants and lawyers; health and safety professionals; industrial hygienists; academics; and members of occupational safety and health public interest groups. Participants were entitled to provide verbal comments throughout the meetings; observers were not allowed to comment during the meeting until the final session had completed, at which point OSHA invitednvited questions and comments from observers.
Eastern Research Group, Inc. (ERG) provided logistical support for the stakeholder meeting, and an ERG technical writer attended the meeting and prepared this summary report. This report captures the main discussion points raised by stakeholders during the meeting, including remarks made by individual stakeholders, but is not a verbatim meeting transcript. No portion of this document reflects or should be considered to represent the viewpoints or opinions of ERG.
All participants were asked to introduce themselves by stating their name and affiliation. Following the participant introductions, the OSHA panelists introduced themselves. OSHA representatives in attendance included Dorothy Dougherty, Mike Seymour, David Wallis, Bryan Seal, and Luis Martinez from the Directorate of Standards and Guidance; Bob Burt from the Office of Regulatory Analysis; and Eve Stocker from the Office of the Solicitor.
Dorothy Dougherty, the Director of the Directorate of Standards and Guidance, provided the introduction to the meeting. Ms. Dougherty welcomed the attendees and emphasized that OSHA's goal for the meeting was to have an open discussion to hear stakeholder opinions about an Injury and Illness Prevention Program and to gather information to help in forming a rule. She stressed that the discussion should not be considered a hearing or a formal meeting. OSHA realizes that all stakeholders have busy schedules and is thankful that each attendee took time to participate in the meeting. The agency has been pleased with the overwhelming response to the stakeholder meetings; Ms. Dougherty cited the success of the two earlier meetings in New Jersey and Texas, as well as the need to add on two more meetings, one in California and another in Washington, D.C., due to overwhelming interest in the process. The Directorate of Standards and Guidance is in charge of developing occupational safety and health standards. A critical part of any standard development is to ensure that OSHA has the necessary information and data to develop a standard that is not only protective, but that can also withstand legal challenge. Ms. Dougherty pointed out that the stakeholder meetings provide important opportunities to guarantee that OSHA has access to the stakeholders' valuable and illuminating insights. Different members of her staff would be directing questions throughout the course of the meeting, she said, to focus the presentation of comments and information. OSHA views the stakeholder meetings as opportunities to garner trust and facilitate the flow of information between the agency and stakeholders. OSHA believes that introducing an Injury and Illness Prevention Program regulations should help to decrease the number of worker fatalities and reduce the occurrence and severity of injuries and illnesses across all industries. Ms. Dougherty mentioned that the new rule will build on OSHA's Voluntary Protection Program (VPP), OSHA's Safety and Health Achievement Recognition Program (SHARP), consensus standards such as ANSI/AIHA Z10 and OHSAS 18001, and state-run programs that have shown to be effective models for improving worker safety and health. The rulemaking process can be lengthy, and public participation is welcomed at every step. Ms. Dougherty stressed that the creation of an Injury and Illness Prevention Program rule is a high priority, and the stakeholder meetings are very important to drafting a rule. OSHA was pleased with the number and variety of attendees and looked forward to a productive meeting and future collaboration on rulemaking.
Mike Seymour of the Directorate of Standards and Guidance joined Ms. Dougherty in welcoming everyone to the meeting. Mr. Seymour remarked that he knew many of the participants by name or reputation, and that with the quality of professionals present, he was confident that the discussion would be highly informative. Throughout the conversation, OSHA was especially interested in learning from the stakeholders and through their experiences what has and what has not worked with regards to rules implemented in the past. OSHA sought to learn the stakeholders' views and understand their perspectives when it comes to all aspects of the subject matter. Mr. Seymour stressed that it is vital for the stakeholders to continue to participate and comment throughout all stages of the rulemaking process, so that OSHA can produce the most informed rule possible.
The meeting facilitator, Ms. Elizabeth Vasquez of Management Consulting Associates, explained the format and logistics of the meeting. Ms. Vasquez noted that the meeting was informal and that participants should freely engage in dialogue. OSHA was not at the meeting to answer questions from the public, she noted, but rather was there to listen and consider stakeholder comments and questions as guidance in writing the standard. Ms. Vasquez reminded stakeholders that they were not there to convince one another, but rather to share their points of view. She pointed out that prepared written statements should not be read from during the meeting, though documents could be submitted to OSHA following the meeting for consideration.
OSHA representatives sought comments and input on four specific topics, outlined in the meeting agenda: (1) the possible regulatory approach for an Injury and Illness Prevention Program rule, (2) the scope and application of a rule, (3) the organization of a rule, and (4) the potential economic impact of a rule. The following points summarize the key stakeholder comments made during the meeting. Comments are grouped together by topic, without reference to the identity of the commenter.
Mr. Seymour introduced the topic of possible regulatory approaches for an Injury and Illness Prevention Program rule. He noted OSHA's Safety and Health Program Management Guidelines (54 FR 3908), first issued in 1989 and one of the early documents to address the area of injury and illness prevention programs. Mr. Seymour also highlighted ANSI/AIHA Z10 and the British Standards Institution's OHSAS 18001, as well as the program standards implemented in various states, as other topic areas of interest. Mr. Seymour said that in crafting the new rule, OSHA wants to gather opinions and perspectives on the above standards to learn which elements have been proven to work, and which can be improved upon.
Mr. Seymour posed the following questions to the stakeholders: What did OSHA do right in prior initiatives? What did OSHA do wrong? What can OSHA learn from the prior initiatives and the current standards? What can OSHA adopt from the groundbreaking guidelines set forth by state programs and consensus standards? What mistakes should not be made again? What can OSHA improve upon? What are the advantages and disadvantages of adopting such a rule?
Stakeholders provided the following comments and recommendations on the above topics:
Relationship to Other Standards
- Multiple stakeholders commented on whether or how the new Injury and Illness Prevention Program rule should reflect aspects of existing and prior standards and models, offering ideas on what OSHA should take from them and what it should avoid taking. One stakeholder felt that the continuous improvement model does not address lower-level risks, so the current model must be altered. Another stakeholder noted that the 1989 OSHA Guidelines are too outdated to use as a starting point-employers have long since adapted their own methodologies that are well evolved from the 1989 beginning. According to this participant, the focus should shift to the risks that most frequently cause the worst injuries and fatalities.
- One stakeholder cited the fact that ANSI Z10 and other, newer standards focus on risks specific to particular businesses as opposed to the greatest risks across all industries, and that the Injury and Illness Prevention Program rule should follow suit. Another stakeholder believed that employers should be encouraged to develop programs largely based on the 1989 OSHA Guidelines. For example, Section 5.1.3 of ANSI Z10 (detailing the procurement process) would be impossible for a small employer to successfully implement. This stakeholder felt that a formalized management system is too much for a small employer to handle. Another stakeholder noted that OSHA should consider how EPA adapted to ISO 14001, as the Agency moved from being totally opposed to the standard to being completely supportive. Commenting on ANSI Z10, this participant felt that the problems are not due to a lack of understanding, but rather a lack of supporting tools to help employers implement the standard. Another stakeholder commented that OSHA should structure the new rule so that it aligns with current business patterns and requirements already in place, as that would assist the many big businesses that are vital to the economy. They noted that while ANSI Z10 does not align particularly well with ISO 9000, OHSAS 18001 does. In summary, they felt that OSHA must understand where businesses are coming from to fully understand how it should shape the new rule.
- One stakeholder commented that OSHA should consider the progressive approaches being developed internationally, such as those in the UK and other parts of Europe, that have shifted to a risk assessment approach. Such cooperative approaches appear to be successful. Another stakeholder encouraged OSHA to consider the systems in place in Canada and Europe as (largely) successful examples to build on. The stakeholder did note that when the Canadian province of Quebec chose to focus on what it considered to be the most serious hazards, the system ended up eliminating from consideration many hazards that caused injuries to minorities in the workplace. The stakeholder said that OSHA should thus avoid focusing on "serious hazards" only.
- One stakeholder stressed that the new standard must be flexible, and global resources must be drawn on for OSHA to craft the best rule possible. In addition, OSHA should consider the system CAL-OSHA developed, as it helps to walk employees through the requirements in a clear, flexible manner.
- One stakeholder encouraged OSHA to consider the Responsible Care Management System, developed by the American Chemistry Council. The stakeholder noted that it is an abbreviated version of the other rules that still contains the core approach of Plan, Do, Check, Act, and has met with dramatic success. Another stakeholder said that OSHA should mine the data from industrial best practices to gain more information on implementing successful programs.
Small vs. Large Employers
- A number of stakeholders talked about the importance of OSHA taking into consideration the varying needs of different-sized companies in regard to implementing the Injury and Illness Prevention Program rule. One stakeholder noted that while there is a wide diversity of firms, often it is the larger, high-risk-sector companies that are best prepared and have the most sophisticated risk management systems already in place. Thus, it is often the smaller institutions that require the most assistance. An Injury and Illness Prevention Program will need to be able to address the needs of both types of firms, the stakeholder said.
- Another stakeholder stated that OSHA must outline broad requirements so that small employers will be able to clearly understand what is and what is not required. It is important to assist and protect the small employers, as they do not have the resources of larger companies to easily develop and follow a compliant program. Further, a stakeholder pointed out, most small employers do not have knowledgeable safety and health professionals on staff to inform the rest on what is required under the new rule, and what they will need to do to be compliant. Tools provided by OSHA to assist the small employer are essential in this scenario. Another stakeholder continued that for small construction employers, such as "five guys in a van," it would be impractical for this rule to require them to implement a management system; instead, OSHA should provide them with a useful tool that they can get value from. A small business representative added that a small employer business panel is essential to get involved in the discussion with OSHA, as they can clearly inform OSHA what is and is not practical when it comes to the implementation of a new rule. For example, a 70-page document would be simply unmanageable when it comes to a small employer attempting to comply with the Injury and Illness Prevention Program rule.
- One participant stressed the importance of flexibility in the rule, so that it can readily be configured to apply to both small and large employers. OSHA could facilitate this by allowing employers to focus on hazards specific to their workplace, not the greatest hazards overall. Another stakeholder remarked that what is good and effective for a large employer is not the same as what is good and effective for a small employer. He continued that OSHA must make room for site-specific programs.
Addressing Different Industries
- Several stakeholders discussed the need for OSHA to approach an Injury and Illness Prevention Program in different ways for different industries. One stakeholder noted that what would be applicable to the construction sector, for example, would have little in common with the needs of most other sectors. Another stakeholder continued that instead of focusing on the most common or most serious risks across all industries, OSHA should allow companies to focus on mitigating the greatest risks specific to their industry and workplace. Another stakeholder stressed that while one size will not fit all for the Injury and Illness Prevention Program rule, OSHA should allow management to determine the most effective and efficient path forward for each company and not try to write a number of specific rules itself.
- One participant recommended that OSHA include tailored appendices to the rule for high-risk sectors like energy and oil, thereby providing valuable additional guidance specific to the industries that need it most.
Focus of the Standard
- Multiple stakeholders emphasized that OSHA needs to be explicitly clear about the intent and focus of the new standard. They offered the following comments:
- The management system should be about reducing and controlling the high-risk events leading to serious injuries and fatalities. While injury and illness rates may have decreased steadily over the last 10 years, severe injuries and fatalities are still high, so the new rule would most effectively focus on controlling the high risk factors. Another stakeholder said that while fatalities are a good place to start building the rule from, the standard must go beyond having just that as a focus.
- The new approach should be prevention-based. Safety and health must be brought back to the top of the agenda, overtaking most employers' primary focus on productivity.
- Hazards must be identified and then systems must be put in place to address those hazards. For the rule to provide value to employers, emphasis should be placed on focusing on the employer's five greatest risks, not the five risks they are most likely to be cited for.
- An Injury and Illness Prevention Program must focus on hazards as opposed to risks in the workplace.
Structure of the New Rule
- Stakeholders shared their views on the form the rule should take, and what OSHA should provide to assist and support employers in implementing the new rule. One stakeholder recommended that OSHA consider its primary role as providing support to help all employers meet the standard, as opposed to basing the rule on penalizing or rewarding employers. Another stakeholder shared that it is vital for the rule to be constructed in such a way that it can be enforced. One participant stated that while it would be easy to craft the standard by simply "cherry-picking" the most successful elements from other standards already in place, it is very difficult to come up with sufficient guidance to inform those industries that have no understanding of the management system concept.
- One stakeholder said that he was less interested in seeing OSHA develop a full system for the rule than in specifying core elements that employers can put in place to allow them to identify hazards and risks in their own workplaces. This participant wanted to see employers take actions to reduce risks facing their employees, based on elements designed by OSHA. Another stakeholder continued that an end goal of the new rule should be to create a surveillance tool employers can use to get an idea of who, what, why, and how their employees are getting injured.
- Another stakeholder emphasized the importance of identifying hazards before beginning any work, and cited the safety plan workers must prepare before doing any work for the Army Corps of Engineers.
- One stakeholder noted that while many at the meeting agreed that a safety management system is a good idea, the drivers behind their support were very different.
- Many stakeholders offered comments on the topic of employee engagement as it relates to the new rule. Several stakeholders believed that employee participation is vital, and that without it any management system is doomed. One stakeholder noted that joint safety and health committees have been proven to be highly successful when put in place.
- Another stakeholder suggested that the rule should mandate that employers act on input submitted by employees. They explained that because employees are closest to the risks on the floor, employers can gain from learning what they deem to be potentially dangerous to their safety.
- One participant countered that an important component of employee engagement is employee responsibility and accountability. According to them, if management takes employees' ideas and implements them, employees must be held responsible to follow them. Discussion ensued on whether holding employees responsible acted as a disincentive for employee engagement, with stakeholders taking up both sides of the debate.
- One stakeholder cited the employee engagement provisions of the New York State Workplace Violence Protection rule, which covers public employees. This stakeholder stressed the importance of union involvement where possible.
- Some stakeholders believed that the culture in the workplace must be addressed to allow for employee engagement. One union representative said that an employee responsibility component would be impossible unless workers felt comfortable reporting hazards and injuries without fear of punishment or retribution. One participant representing a safety professional association said that workplaces that actively encourage worker engagement in reporting risks and injuries regularly outperform workplaces that do not.
- One labor representative offered ideas on how to encourage employee engagement in the workplace, including creating focus groups, allowing employers to do walk-arounds, and leaving supervisors out of hazard discussions so that workers feel more comfortable speaking freely on the topic. Once ideas are shared, the stakeholder continued, it is vital for the process to move forward and generate action items. This is most achievable through a team effort rather than a unilateral approach. Another stakeholder said that to encourage engagement, any comments brought up by worker committees should be addressed within 30 days by management, and should include some justification of the employer's decision to move forward or not. The stakeholder continued that it is important for the employer to also keep an ear out for the voices traditionally going unheard, including minorities.
Enforcement and Metrics for Quantifying Success
- Several stakeholders touched on the issue of enforcement of the Injury and Illness Prevention Program rule and metrics for quantifying its success. One stakeholder recommended that OSHA consider an enforcement moratorium for the first few years and instead focus on providing guidance to help employers become compliant. Another stakeholder agreed, continuing that OSHA should use that time to determine what an acceptable level of risk is, thereby allowing the agency to determine who is compliant and who is not compliant. Another participant asked what metrics OSHA intended to use to quantify proposed aspects of the program like engagement and commitment. Stakeholders questioned whether the level of enforcement would be escalating over time, and whether or not OSHA would develop a way to assess whether employers are actually improving over time.
- One stakeholder believed that so long as an employer implements the necessary Injury and Illness Prevention Program elements, OSHA will be responsible for somehow proving that the employers are not in compliance with the rule. Another stakeholder noted that OSHA will need to clearly define what evidence is necessary to prove non-compliance, as well as what would happen if an employer is deemed to be non-compliant. Additionally, the stakeholder noted that the content of the rule needs to be considered in tandem with the penalties for non-compliance.
- A representative from a large company stated that he was concerned that steps employers are already taking to address the topic of workplace safety-on their own time-could leave them vulnerable to being penalized under the new rule.
- One participant foresaw significant issues with the new rule ever becoming fully implemented, as he viewed it to be virtually impossible for any plant to become fully compliant. Additionally, he noted that while employers were able to self-audit based on OSHA's 2000 guidelines, the new rule would make all self-audits accessible to OSHA. That, the stakeholder believed, would steer employers away from actively taking steps to make improvements on their own, and instead move them toward steps that will result in the fewest citations.
Luis Martinez of OSHA's Directorate of Standards and Guidance introduced the topic of the potential scope and application of an Injury and Illness Prevention Program rule. Mr. Martinez acknowledged that of the 7.5 million establishments in the country, 5 million have 20 employees or less, and within those small establishments a significant number of injuries and illnesses occur. As the rule could reduce injuries and illnesses, Mr. Martinez noted, OSHA must consider how far-reaching it should be in its scope and applicability. He cited OSHA's particular interest in learning stakeholders' opinions and experiences on whether and how the agency could narrow the scope of the rule.
Mr. Martinez posed the following questions to the stakeholders: Should an Injury and Illness Prevention Program rule apply to all industries, or should the scope be limited only to specific industries? Should the rule be limited to employers of certain size? Should the rule be limited to employers with a certain injury and illness rate experience? Should the rule be limited to specific occupational hazards? What approach would be best to capture the workplaces that would benefit most from an Injury and Illness Prevention Program rule?
Stakeholders provided the following comments and recommendations regarding the scope of the rule and how it should be applied:
Scope of Population Covered
- Many stakeholders shared their opinions on whom the new rule should cover. The comments fell into five main categories:
- Size of company. One stakeholder recommended that if OSHA considers the size of a company when determining who would be covered, it should focus on the number of employees working in hazardous areas, excluding those working in accounting, IT, etc. Another stakeholder emphasized that all entities under OSHA's jurisdiction should be covered, as even small employers can have serious incidents and accidents.
- Type of industry. One participant emphasized that OSHA should not exempt any industries or companies from the new rule, arguing that since there are high-hazard establishments in low-hazard industries, all entities must be covered. The stakeholder did endorse differences in application and exceptions within the rule, but maintained that by ignoring any establishments, OSHA would be giving up employees' rights. One stakeholder believed that instead of using injury rates as a way to determine what industries are covered; OSHA should focus on how hazardous various industries are and progress from there. A number of stakeholders emphasized the importance of including the growing number of short-term, transient, and contract employees who are escaping regulation due to their non-full-time status. Yet another stakeholder added that self-employed workers must also be covered. One participant cautioned OSHA against using Standard Industrial Classification (SIC) codes as the basis for determining rule coverage, as these are assigned based on the primary activities that occur at the facility. Some establishments classified in a low-risk SIC could still have a substantial number of employees engaged in high-risk work activities.
- Worst current offenders. One stakeholder encouraged OSHA to consider a performance-related approach, recommending that the agency focus on those falling below a specific standard. Another stakeholder said that OSHA should only include those companies that have high hazards or are "bad actors," and not waste resources tracking down those with systems that already seem to work. One stakeholder noted that using injury data to determine who is covered will be problematic, as the information is a lagging indicator. Another stakeholder shared comments made by Secretary Solis, interpreting them to mean that only a small group of establishments require attention from the enforcement arm of OSHA. According to the participant, Secretary Solis suggested most employers either take adequate measures to ensure safety or need minimal help to understand the requests being made of them.
- Tiered system of implementation. One participant advised OSHA to use a tiered system when bringing the new rule into effect. Such an approach would acknowledge the different risk levels faced by various industries, as well as the effects that company size would have on implementation rates and means. By tiering, this participant concluded, OSHA will be better able to get the resources needed for reaching compliance to where they need to be. Another stakeholder agreed that some tiering of the rule should take place in terms of effective dates, acknowledging that it may take some organizations longer than others to become compliant. This participant suggested there is less urgency to get lower-hazard industries to comply as quickly as high-hazard industries. Another stakeholder said that the extent of documentation required could be tiered as well, as small employers could become quickly overwhelmed by paperwork. Several examples of OSHA successfully implementing a tiered system were mentioned, such as the bloodborne pathogen program.
- Grandfathering. One participant who works with large companies argued against grandfathering in companies that already have advanced, effective systems in place, but did call for OSHA to acknowledge such systems when orienting the regulatory effort. Another trade association representative noted that certain industries have already established protocols for injury and illness prevention. They felt that if such protocols meet OSHA's requirements, firms in the industry should be grandfathered in and considered compliant overall. Another stakeholder countered that if an employer is already meeting stringent standards, they would have to make only minor adjustments to their program to come into compliance with the new rule. Therefore, this stakeholder argued, no firms should be grandfathered in because they should theoretically already be compliant, or almost compliant-and if they are not, then the protocol they are meeting is not strict enough.
Scope of Content Covered
- One stakeholder argued that there needs to be a reality check in terms of expectations for what can be achieved with the standard, as there is no way that it will be able to address all the issues that various stakeholders want it to. One option, the stakeholder noted, is for OSHA to make certain items mandatory, and then recommend or provide guidance for tackling other actions that could further prevent injuries and illnesses.
- One stakeholder advised OSHA to not ignore hazards that employers often fail to address. He offered the example of hearing loss, which is a known hazard in certain industries but does not receive enough attention.
- In addition to being clear about what is required under the rule, one stakeholder urged OSHA to be very clear about what the rule is not intending to do and what it is not attempting to achieve. This would alleviate many employers' concerns that an Injury and Illness Prevention Program could function as a backdoor rule for something like ergonomics. A labor representative countered that the scope of the rule should not be limited, as this is an important opportunity to identify more potential hazards. This participant felt it would be very short-sighted to limit this standard to cover only hazards that OSHA has already regulated.
- Several stakeholders commented on the relationship between worker health and well-being and the propensity to get injured while on the job. One participant noted that improving the health of the worker diminishes the chances of the worker developing diabetes and obesity, and thus the severity of injuries can be decreased. This rule, she added, could provide a good opportunity to begin a conversation about healthy behaviors in the workplace, such as walking at lunch, stocking vending machines with healthy options, and offering smoking cessation treatment. An industry representative noted that when their industry implemented a wellness and fitness initiative, a significant decrease in injuries and illnesses was seen.
- One stakeholder argued that under the General Duty Clause of the OSH Act, employers are required to protect employees from recognized hazards, without specifying the measures they must take. By requiring employers to implement an Injury and Illness Prevention Program to address hazards covered by the General Duty Clause, this participant felt, OSHA would appear to be going beyond the intent of this section of the Act.
Current Examples of Success
- A representative from a company that operates internationally noted that, in comparing performance across their locations, they have found no link between the stringency of regulations and the rate of injuries. Some locations that are not regulated do well, and some that are tightly regulated do poorly. The stakeholder continued that figuring out how to motivate the employee to maintain responsible behavior is vital, and that money is often an important incentive.
- One stakeholder offered insights into a successful program established by the Province of Manitoba. The authorities there developed and promoted a voluntary guidance document that she believed was effective in achieving their goals. A self-help tool offered to employers has also been extremely popular. This participant suggested that employers in the United States would benefit from practical, how-to, step-wise instructions on how to implement an Injury and Illness Prevention Program, written in plain language.
- One stakeholder noted that the published numbers of fatalities are far lower in the UK than in the United States; he is now researching whether this can be attributable to the systems they have in place in the UK or for other reasons. The resulting findings will be shared with OSHA within the year.
- Multiple stakeholders asked OSHA if it had followed up with employers who implemented the 1989 Guidelines, and with employers in states that have similar workplace programs in place. OSHA responded that it is currently mining its data on the 1989 Guidelines in an effort to determine the effectiveness of those programs. As for the different states, the agency acknowledged that data it might use to evaluate their success are lacking, although preliminary research from 10 years ago suggested those programs were effective. The agency is following up on more data now.
- One stakeholder commented that it would be inappropriate to apply the successes identified in VPP across industry in general, as employers who participate in VPP are not representative of the rest of industry.
Unique Workplace Scenarios
- Multiple stakeholders, including both industry and labor representatives, stressed the importance of OSHA defining a process for multi-employer sites. One stakeholder noted the need to address the process of managing, communicating, and bringing individual programs together on a multi-employer site. Because of the uniqueness of the scenario, the stakeholders thought that construction should be considered independently of other industries under OSHA's new rule.
- Stakeholders also advised OSHA to consider the case of temporary workers, including contractors, transient labor, and temporary hires. Several stakeholders noted that contract employees must be factored in when calculating incident rates in order to determine regulatory applicability. Currently, such workers are excluded from rate calculations even though they often perform high-risk work. Another stakeholder pointed out that some employers appear small based on the number of permanent employees, but on any given day they could employ a great number of temporary workers.
System vs. Program
- Multiple stakeholders commented on the difference between systems and programs, as well as the pros and cons of implementing one versus the other. While no two definitions matched, one common theme expressed is that a program may involve several elements, while a system includes provisions for ensuring that those elements are operating as they should be. One stakeholder noted that systems concepts may not work well for small employers, whereas large employers already have systems and are comfortable with them. Another stakeholder expressed a hope that the rule will contain provisions to ensure the program (or system) has longevity. This stakeholder emphasized the importance of including the Plan, Do, Check, Act cycle. This will make the rule effective now and in the future, as employers will be required to repeatedly revisit hazards and identify deficiencies. This promotes a process of continuous improvement. One stakeholder believed that while a set of guidelines would be a good starting point for employers to use when implementing the standard, an actual rule on how to implement the program would be too much and too complex.
- Several stakeholders questioned how OSHA intended to define a "successful" program, and what that would mean in practice. One industry representative noted that employers could spend significant resources to make a system conform to a standard, without necessarily making any measurable gains in reducing environmental or safety risks in the workplace. Another stakeholder stated that OSHA's VPP is unable to ensure success, as many companies enrolled still exhibit workplace problems. One definition of success offered by a stakeholder was for the standard to cause different groups to come together to collaborate and share tools.
- One participant noted that if the Injury and Illness Prevention Program framework works well, it will not be possible to measure such success as it will be lost in the general decrease in incidents over time. She noted that even if some establishments could be currently labeled as "successes" due to low numbers of incidents, without a program in place it is only a matter of time until the numbers of incidents increase. This participant also noted that if OSHA looks in enough different workplaces, many solutions exist for how to implement successful programs in a range of workplaces. In support of her comment, she cited a 2004 Barber et al. study in the American Journal of Industrial Medicine that considered the implementation of an OSHA program by different workplaces. The study concluded that being a small employer may not be a barrier to the successful adoption of an OSHA rule.
Implementation of New Rule
- Several stakeholders discussed how they foresaw the new rule being implemented by OSHA. Many expressed concern that with the rule, OSHA could "double-dip" and issue employers two citations for the same incident, as now a failure of process could be added on as well. Stakeholders were concerned that even if an employer does have a system in place and is putting forth an honest effort in reducing risks, an incident could still occur and OSHA would cite the employer for a failed system.
- One stakeholder believed that it would be inappropriate for OSHA to cite an employer for not having a system in place if the inspector has gone on site and found nothing wrong otherwise. Another stakeholder countered that even if no incidents have yet taken place, a lack of system should be cited because a system is an important tool for ensuring that incidents remain low or absent. The stakeholder, however, was unsure how OSHA would determine the system was deficient.
- Multiple stakeholders discussed the implications of requiring an employer to maintain a list of identified hazards in the workplace. In particular, they expressed concern about an inspector seeing that list before the employer had had the opportunity to address some or all of the hazards. Many stakeholders felt that the employer should not be cited in such a scenario, though for several different reasons. One stakeholder pointed out that if an employer knew the company could be inspected at any time and it would be held accountable for a list of identified hazards, it would be a serious disincentive for the employer to actively investigate and take note of any issues arising in the workplace. Another stakeholder pointed out that timing, resources, or even technical or engineering issues could prevent an employer from immediately taking steps to abate an identified hazard, so an inspector could catch the workplace in the in-between period even though plans are being made to fix the issue. Another stakeholder continued that OSHA will need to clearly spell out what an employer will need to do to show or prove that management has done enough work to address identified problems to handle the abovementioned issues.
- Several stakeholders talked about the need for OSHA to be understanding when it comes to the ranking of risks. A representative from a large company noted that their focus is always on tackling the most serious risks first; if smaller risks have also been identified, they could be pushed lower down on the priority list. The stakeholder emphasized that it was important for OSHA to devise some type of system to allow for "residual risks" to be put off while larger issues are tackled; otherwise, the stakeholder warned, employers would be less likely to take steps to identify risks at all. Another stakeholder noted that if OSHA were to go into a worksite and not see a list of hazards, it would be likely seen as immediate sign of a failure in the system. OSHA should be accepting of an employer that has a residual list of hazards waiting to be dealt with, provided that the list is accompanied by a series of plans and actions for eventually addressing each hazard in turn. One stakeholder noted that under the New York State Plan for Public Employee Safety and Health (PESH), unions have developed a risk evaluation and summary of results form, which not only documents the steps taken but also notes the immediate, intermediate, and long-term planned interventions. Finally, another stakeholder noted that it would be valuable for OSHA to take into consideration a company's improvement over time, which would add context to what was being seen during an inspection.
- One stakeholder suggested that the Injury and Illness Prevention Program rule could discourage employers from conducting voluntary audits, if OSHA inspectors could use the results of the audits as a basis for issuing citations. For example, if an audit identifies a hazard but the employer has not yet abated the hazard, an OSHA inspector could cite the employer.
Bryan Seal, of the Directorate of Standards and Guidance, introduced the topic of how the Injury and Illness Prevention Program rule should be organized. Mr. Seal noted that this topic addresses the rule's actual text and structure. In the announcement for the meeting, OSHA had identified six "core elements" that the standard could include: (1) management duties, (2) employee participation, (3) hazard identification and assessment, (4) hazard prevention and control, (5) education and training, and (6) program evaluation and improvement. OSHA is interested in learning stakeholders' opinions on the appropriateness of the identified core elements through their experiences, as well as whether the agency should include appendices to the standard that provide tools to assist in compliance.
Mr. Seal posed the following questions: Are the core elements identified by OSHA acceptable for an Injury and Illness Prevention Program rule? Which elements are essential for an effective approach? Are there additional elements that should be included? What type of information or tools should be included in the appendices?
Stakeholders provided the following comments and recommendations regarding organization of a rule:
Terminology, Phrasing, and Structure of the Rule
- One stakeholder began the discussion by characterizing the 1989 Guidelines as outdated, suggesting that OSHA abandon the old guidelines entirely and move toward a modern system concept used in industry today. Another stakeholder noted that if OSHA intends to align its process with existing practices (which should be a goal, stressed this stakeholder), it should use terminology that is currently in vogue, or at least more accurate than the proposed phrasing for the six core elements. The stakeholder did not feel that the core elements terms would be familiar to most of industry.
- Several stakeholders discussed the need for OSHA to keep the language simple and easy to understand. Definitions for terms should be provided as well, said stakeholders. Terms needing definitions include "policy," "employee duties," and "hazard" vs. "risk." One stakeholder said she thought the program should begin with a policy statement, and then some sort of listing of responsibilities with the levels of management responsibilities clearly delineated. Another stakeholder thought that there should be a purpose and intent section, a definition of key terms, and a detailed specification of employee involvement. They added that when collective bargaining agents are present, they should be identified in the process as well.
- One stakeholder noted that in addition to plain and clear language, the rule would benefit from graphics and good design, as well as being translated into a sufficient number of relevant additional languages.
- One participant noted that since OSHA regulations will affect state programs, it is imperative that the rule be precise and allow little room for misinterpretation.
Core Elements of the Rule
- Several stakeholders offered their opinions on the elements that OSHA should include in the rule, either as new components or as "evolved" elements from older guidelines. One industry representative noted that the elements from the 1989 Guidelines do not align well with modern terminology; for example, the "hazard and identification process" is really part of the overall planning process, not a stand-alone issue. This stakeholder also believes that the Injury and Illness Prevention Program rule is lacking an element targeting the monitoring and measuring of incident investigations, and thought that it would be valuable to include the Plan, Do, Check, Act model, similar to ANSI Z10 or OHSAS 18001.
- Another stakeholder preferred the term "management commitment" to "management duties," suggesting phrasing for the rule along the lines of: "This is your duty, commit to it reasonable energies and resources." This stakeholder noted that when people believe they are doing something for the right reasons-as opposed to doing it to comply with OSHA-they are more likely to stick with it and fully commit to it.
- A union representative wanted to be sure that people are trained to the specific hazards that are identified in the hazard assessment.
- Multiple stakeholders commented that recordkeeping and reporting should be included as basic elements of the rule.
- Stakeholders also noted the importance of OSHA specifically including a clause on how the rule will function on a multi-employer worksite, and how to apply the rule to temporary, transient, and contract workers.
- One stakeholder noted that within the hazard identification and risk assessment section, employee health should be a prominent component. Another stakeholder noted that the health risks employees bring to the job must be addressed, and encouraged OSHA to include a voluntary appendix that provides employers with information on developing integrated health and safety programs.
- One stakeholder noted that it was important to frame the rule in such a way that a continuous feedback mechanism is established that can constantly identify new risks as they arise.
- An industry representative noted the importance of appendices as successful guidance tools to the rule, and requested that OSHA gather the information for the appendices in a transparent manner. This participant recommended that OSHA collect information specific to different industries, and put it in circulation as soon as possible-before the rule, even-to give employers a chance to understand and prepare for what is coming their way.
- A stakeholder thought that OSHA should address the topic of residual risk in addition to high risk so as to ensure that employers will focus on both areas as opposed to only tackling identified high risks.
- A labor representative noted the importance of successful education and training, a clear explanation of how employees fit into the education and training process, and defining the different levels of training that are required depending on what position an employee has within the company.
- One stakeholder stated that too detailed or complex a plan will be daunting to companies, and may discourage them from taking any steps to comply with the Injury and Illness Prevention Program rule. In order to bring value to small organizations, the stakeholder argued, OSHA will need to consider the needs of organizations across the country. It might be valuable for OSHA to consider crafting a system that explicitly targets the most common hazards, and then take a non-regulatory approach to all other safety and health issues.
- Multiple stakeholders responded to Mr. Seymour's earlier question about how much documentation and recordkeeping should be required under the new rule. Several stakeholders thought that it was essential for companies to record their policies and maintain complete documentation of how their process works. This documentation, they noted, would allow for all employees to be aware of the process, and ensure that the process lives on beyond the committee that first creates it. In addition, doing so would hold employers and employees to their commitments. Another stakeholder continued that in the event that an employer identifies a hazard in the workplace, it is imperative that they immediately know or be able to reference the next steps.
- One stakeholder advised that clearly defined and documented roles and responsibilities can help organizations conduct themselves appropriately throughout an incident. Another stakeholder added that an organization will benefit from determining and documenting all training elements right from the start.
- Multiple stakeholders suggested that there is value to a company documenting its improvement process as well as the steps it took to make improvements. Another stakeholder believed that two of the biggest deficiencies in process at present are hazard analysis management itself and determining the cause behind any hazard.
- A labor health and safety representative noted that in addition to drafting a core program that states who is responsible for what, who to go to in different scenarios, and so on, OSHA should assist organizations in tailoring their core program by attaching appendices specific to different industries. Several stakeholders believed that there is no one-size-fits-all solution that could apply across all industries. One employer could be overburdened by what they are required to record, while another would find it to be insufficient for capturing all relevant and necessary information. One stakeholder did believe that no matter the industry, all accident investigations should be recorded.
- One stakeholder voiced concerns that it is impossible to know what should or should not be written down without first knowing what elements the rule will include. Another stakeholder noted that once the elements of the rule are decided, it should be fairly apparent what will or will not be necessary to record.
Definition of "Competency"
- Several stakeholders commented on OSHA's use of the terms "competent" and "competency," and what they believe they mean in the context of the rule. One stakeholder emphasized that competency is separate from training. Training alone, they stated, cannot always make an employee competent; competency comes through experience and learning from others, as in an apprenticeship. This stakeholder continued that being "competent" means being able to predict the end result. This participant also noted the difficulty of assessing competency of those in management positions. Another stakeholder shared that competency means being able to demonstrate one's ability to do something, especially as measured against a standard.
- One stakeholder said that some metric must be developed to allow a general contractor to judge subcontractors on their safety competency before hiring them.
- Several stakeholders noted the importance of training employees as well as management to ensure their understanding of protocols developed as part of the Injury and Illness Prevention Program, in addition to training those responsible for performing risk evaluations.
Analysis and Integration of Other Rules
- Numerous stakeholders were curious about how the new rule would relate to other rules already in place, as well as to what extent OSHA had assessed the relative success of other, related programs. One stakeholder noted the importance of first figuring out what programs already exist, and then weaving their relevant components into any new rule that gets developed. An industry representative noted that they have seen a correlation between the sophistication and maturity of management systems and injury and illness rate reduction. Another stakeholder expressed concern that OSHA appeared to be starting from scratch on the rule rather than first doing serious assessments of state programs that are already in place and then developing the rule from there.
Bob Burt, Director of OSHA's Office of Regulatory Analysis introduced the topic of economic impacts of an Injury and Illness Prevention Program rule. In determining the costs of implementing the new rule, the economic analysis team must consider who will be affected, how they will be affected, and to what degree and over what timeframe they will be affected. OSHA needs stakeholder information about what the potential costs and benefits of an Injury and Illness Prevention Program rule would be. Mr. Burt also took the time to note the importance of participation in the Small Business Regulatory Enforcement Fairness Act (SBREFA) panel to ensure that the impacts on small employers are appropriately taken into consideration, and accurately estimated.
Mr. Burt posed the following questions to the stakeholders: What would be the costs to businesses to implement an Injury and Illness Prevention Program rule? How can the costs, as well as their timelines of costs, be estimated? What would be the incremental cost to businesses that already have injury and illness prevention programs in place? How can costs be minimized or avoided while achieving program goals? How can the benefits or the effectiveness of an Injury and Illness Prevention Program be measured? What sorts of resources are required to fix safety and health hazards discovered by programs? When are mandatory programs necessary and when can voluntary programs successfully take their place?
Stakeholders provided the following comments and recommendations regarding economic impacts:
Calculating the Costs of Hazards
- A few stakeholders spoke of the relative dearth of information surrounding the costs of hazards and what is gained monetarily by correcting them. One researcher noted that it will be difficult for OSHA to determine whether risk reduction activities result from prior standards or the new rule going into effect. In addition, they noted how difficult it will be for OSHA to determine what has been fixed, and how to cost out what has been saved.
- One participant noted that companies pursuing voluntary certification rarely keep good track of all of their costs from the outset. Often, according to this stakeholder, the company will address a few hazards and account for those costs, but will not revise their initial cost estimates when they address hazards in future cycles. Upon questioning, the stakeholder added that generally the savings that arise from the management system are the result of small steps the employer takes, not linked to correcting big ticket hazards.
- One stakeholder referred OSHA to the work of Emil Tompa, who researches cost-effectiveness at the Institute for Work and Health in Toronto, Canada (website: http://iwh.on.ca).
Tools Provided by OSHA
- Several stakeholders discussed the importance of OSHA providing tools along with the new rule, and how the tools' effectiveness could influence the cost of implementation for employers. Several stakeholders suggested that the cost of the new rule to small firms would directly depend on what toolkit OSHA provides them. One stakeholder continued that while OSHA could suffer increased costs in creating the tools, this step would result in considerable savings to business owners.
Need for Outside Assistance
- Stakeholders also discussed the importance OSHA shaping the rule so as to minimize the need for outside assistance like consultants. Several stakeholders emphasized that OSHA has to do all it can to mitigate the need for any small businesses to hire consultants in order to properly implement the rule. Another stakeholder noted that while experienced employers can usually manage on their own, small employers often struggle. The rule, the stakeholder said, should be able to be implemented solely using the resources available to the employer and workers at the facility.
- One stakeholder referred OSHA and participants to the website http://sobane.be as a valuable resource developed to allow any number of parties to determine whether: (1) they have a problem, and (2) they need to do something about it right away. With the tool, employers are able to determine if they absolutely need to hire outside help immediately, or if they can instead handle an issue on their own.
- One stakeholder noted that EPA had the right idea-even if not the best model-when it provided a substantial amount of training and guidance on its website prior to the implementation of a new rule this past spring.
Cost-Benefit for Employers
- Stakeholders discussed the cost to employers of implementing the rule, as well as the benefits that could be eventually gained from it. Stakeholders noted that the costs would include those associated with developing a program, training employees, and recordkeeping throughout the rule. Another stakeholder noted that before the rule is defined, it is impossible to know how much time employers will need to dedicate to developing a program. One stakeholder questioned whether OSHA had access to a database of common costs of risk abatement (to which OSHA responded "no"). Another stakeholder commented that it is a significant problem that no system exists for evaluating injuries and their associated costs.
- Stakeholders identified multiple benefits that they viewed as potentially available in tandem with implementing the rule. Benefits would include a reduction in injuries (resulting in a reduction of workers' compensation payments, lost time, and training spent on bringing replacement employees up to speed), as well as process improvements, increased efficiency, and other gains that are more difficult to quantify. A representative from a professional organization noted that their group presents an annual award to companies with sustainable environmental, health, and safety (EHS) programs. The award evaluation considers the extent to which the EHS program is integrated into a company's business planning, and applicants often document how doing so has made them more competitive. Another industry representative noted that it has done some research on the more difficult-to-quantify aspects of the calculations, like safety's contribution to business value creation, and would be willing to share that information with OSHA.
- A representative from the construction industry expressed concern that the cost of implementing the new rule could be limitless, as employers fear they could be held responsible for a failure of their system if any incident occurs, no matter how many steps they took to mitigate hazards in the workplace. The stakeholder also noted that, as OSHA continues to identify new hazards in the workplace, the rule could become a never-ending regulatory process that would require employers to continuously spend money to adapt to the changes. Another stakeholder countered that such a process could also be considered "continuous self-improvement," and that while the costs could be high, the resulting benefits could be significant as well. Another stakeholder maintained that hazards are dynamic and, as the employer must identify all recognized hazards via the General Duty clause of the Occupational Safety and Health Act, employers must always be prepared to adapt to their changing environment. The stakeholder continued that materials could be distributed identifying the biggest contemporary hazards specific to each industry, and those could be the ones targeted by OSHA at any one time, thereby applying some limit to the economic burden placed on employers.
- One stakeholder noted that although low-probability, serious-injury outcomes are costly to avoid, all employers should take on the costs of implementing an abatement system.
- A stakeholder shared that from her experience training supervisors, it is important to warn employers that if, a program is successfully put in place, they should expect to see an uptick in reported hazards in the short term as risks are correctly being identified. Over time under a successful program, however, the rate of identification should steadily decrease.
- One stakeholder identified a program in England that is in place to identify less frequently considered costs, as hidden costs are generally not taken into account in cost-benefit calculations by employers.
- Another stakeholder commented on the value of integrating sustainability and life cycle analysis into the rule, and asked about the legislative and consumer costs associated with such an action.
Carrot vs. Stick Approach
- Several stakeholders discussed the merits of applying a "carrot" versus a "stick" approach for getting employers to implement the rule. Multiple stakeholders expressed their belief that if employers are given a reason to adopt the program and are shown the benefits that can arise from it, they will be more likely to embrace it than if they are simply mandated to comply. Other stakeholders believed that most employers already have enough motivation to implement a program, and yet many do not have one in place. Thus, they argued, it is essential for OSHA to be prepared to use the stick approach to get non-compliers in line.
- Several stakeholders noted that insurers have a big stake in the matter: significant savings can be had from employers taking steps to avoid incidents and accidents, so insurers have an opportunity to come on board as partners in encouraging compliance. Another participant commented that many safety and health programs are in place because insurance agencies have been able to successfully show their clients the gains that can be made from implementing a program.
Stakeholders provided additional comments and recommendations that could not be classified into any of the key topics above:
- One stakeholder believed that OSHA does not need to create a new rule in order to achieve fewer injuries and fatalities. Instead, the stakeholder cited the book The Checklist Manifesto: How to Get Things Right as an example demonstrating the appropriate solution: increased communication.
- One stakeholder commented that consensus standards are not appropriate models for a rule by OSHA, as while they are valuable to industry to illuminate what to focus on, the fear of regulators stepping in and focusing on the newly identified hazards would be a disincentive for stakeholders to participate. Another stakeholder countered that consensus documents are fully intended to be used by OSHA, and it would be illogical to presume otherwise.
- A stakeholder noted his preference that the term "worker," rather than "employee," be used in the discussions and the rule.
- One participant asked OSHA about its timeline for the rule. OSHA responded that, although the issue is a top priority within the agency, it would take some time for it to actually come into effect.
- Several stakeholders discussed the need for employers to implement training programs to target employees as they enter new jobs, to immediately address all hazards and risks within the workplace. Stakeholders also pointed out the need for training programs for management as well, as many lack the education and training necessary to implement risk management systems.
- One participant expressed concern that the rule would result in "Monday morning quarterbacking," with OSHA unfairly criticizing or citing an employer for failure to foresee any and all accidents that could occur in the workplace.
- A stakeholder reminded OSHA of Secretary Solis' statement that there is a very large group of responsible employers who do a very good job and don't need OSHA's intervention, others that want to do the right thing but don't understand how and do need OSHA's help, and a small group that doesn't seem to care, who require OSHA's enforcement attention. This particular standard should mostly apply to the last group.
Mr. Seymour thanked the attendees for taking the time to participate in the meeting. He felt that the conversation had been highly informative and valued the perspectives shared by all the stakeholders present at the meeting. Mr. Seymour emphasized the importance of stakeholders continuing to participate in the rulemaking process, saying that there were still many opportunities for stakeholders to participate. He mentioned that OSHA is considering conducting a series of site visits at companies that have highly successful safety and health programs to see how their programs operate, and what they have done that works very well. Interested parties should contact OSHA if they would like to arrange a site visit. Mr. Seymour noted that the summary report from the meeting will be posted to OSHA's website (http://www.osha.gov) in the future. In closing, Mr. Seymour stressed that an Injury and Illness Prevention Program is a priority project for OSHA, as publicly emphasized by Dr. David Michaels, and will be treated as such in the time ahead.