Injury and Illness Prevention Programs Stakeholder Meeting
August 3, 2010
Meeting Summary Report
Table of Contents
2.0 Opening Remrks
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 and Observer Comments
5.0 Closing Remarks
Injury and Illness Prevention Program
August 3, 2010
Meeting Summary Report
This report summarizes the key points made during the August 3, 2010, Injury and Illness Prevention Program (I2P2) stakeholder meeting conducted by the Occupational Safety and Health Administration (OSHA). The meeting took place from 8:30 a.m. to approximately 3:15 p.m. at the Sacramento Convention Center in Sacramento, California. 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 119, pages 35360 - 35362) on June 22, 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 Sacramento meeting was the fifth of five scheduled Injury and Illness Prevention Program stakeholder meetings (expanded from an initially scheduled three). Attendees were designated as either participants or observers. In total, 37 participants and 78 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; health and safety professionals; and academics. 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 entertained 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.
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 and noted that all stakeholders have busy schedules and thanked the attendees for taking the time to participate in the meeting. She stated the agency has been pleased with the overwhelming response to the stakeholder meetings; Ms. Dougherty cited the success of the four earlier meetings in New Jersey, Texas, and Washington, D.C., and noted the need to add two more meetings to the original three due to significant interest in the topic.
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 best available 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 build trust and facilitate the flow of information between the agency and stakeholders. OSHA believes that introducing an 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.
Ms. Dougherty also introduced OSHA's project team in attendance. Joining her were Mike Seymour, Mark Hagemann, and Luis Martinez from the Directorate of Standards and Guidance; Paul Bolon from the Office of Regulatory Analysis; Eve Stocker from the Office of the Solicitor; Glenn Shor from the Office of the Assistant Secretary; and Jordan Barab, the Deputy Assistant Secretary.
Mr. Barab joined Ms. Dougherty in welcoming attendees to the meeting, and stressed the importance of the topic to OSHA. He stated his excitement and interest in hearing the comments of representatives from California during the meeting, acknowledging the state's status as a pioneer in this field. He noted that while OSHA expected these meetings to produce some degree of controversy, the agency believed the meetings to be invaluable in terms of providing a solid foundation to build from for the remainder of the rulemaking process. Mr. Barab shared some common themes that had arisen throughout the previous four meetings, noting that the meetings had been attended by more than 200 participants and 300 observers from among the nation's who's-who in the field. He noted that California has already had to address many of the concerns presented during previous meetings, and thus OSHA was looking forward to the forthcoming discussion.
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. Ms. Vasquez encouraged participants to keep their comments short to allow time for more people to be heard. She noted that the meeting was being recorded, but that the summary report (to be published at www.osha.gov in the next several weeks) would not attribute comments made to specific stakeholders. Ms. Vasquez did inform the participants that members of the press were in attendance, however, and advised them to consider how their commentary might be construed and reported by the media.
Prior to the start of the discussion, Ms. Vasquez asked all participants to introduce themselves by stating their name and affiliation.
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. He stressed that OSHA wants to avoid heading down blind alleys during the rule-making process in an effort to develop a successful rule as quickly and efficiently as possible, and looked to guidance from those who have already been through the process as a way to avoid taking those missteps.
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:
Engagement With the Rule
- Multiple stakeholders discussed methods OSHA could use to increase workplace engagement with an injury and illness prevention program. Stakeholders were concerned that, especially in the case of small employers, workplace plans can wind up sitting unused on a shelf following initial development. Several different suggestions were offered to ensure effective engagement, focusing on the leadership component, health and safety committees, and a "continuous improvement" clause.
- Leadership component. Multiple stakeholders discussed the importance of top management engagement and commitment. One participant argued that engagement cannot be fully mandated, but she did believe that if the rule were crafted in a simple form and were easily understandable, management would be more likely to be engaged. Another stakeholder emphasized that without a clear commitment by top management, accompanied by involvement across the board, workplaces can become disengaged from the rule. Several other stakeholders noted that unless management is involved, a plan is more likely to collect dust on a shelf. One participant noted that management engagement could be assured by requiring management to periodically sign off on the program,
- Health and safety committees. A labor representative stated that worker-based health and safety committees are a valuable tool for increasing employee engagement, and noted that they serve as a way to mandate leadership involvement. Another stakeholder was more hesitant to make committees mandatory, stating that while they could be beneficial in some scenarios, they do not have the same results in other workplaces. The stakeholder recommended that OSHA not mandate such committees, but instead provide supplemental guidance on how to organize them if they are desired.
- Continuous improvement. Multiple stakeholders saw value in including a "continuous improvement" requirement, noting that if a workplace plan had to be continuously updated, employers would be required to revisit it periodically and thus be more likely to remain engaged. One stakeholder noted that, for hazards that involve medical surveillance, Europe serves as a good example. In the EU, the attending physician must always be kept up to date. Another stakeholder highlighted language in California's state standard-"establish, implement, maintain"-that allows for citations to be issued if a plan clearly remains untouched on a shelf (failure to "maintain"). This promotes and encourages continuous improvement in the employer's program. Such language also helps California avoid the situation warned about by another stakeholder, in which employers simply hire someone to write a plan for them and then never reference it again. Many stakeholders emphasized that making a program sustainable is much more difficult than initiating its development.
- Stakeholders made additional comments focused on promoting continued engagement. One stakeholder, after stressing that for an Injury and Illness Prevention Program plan to work properly everyone needs to be involved, argued that California's state standard currently fails to specifically mandate effective, active worker engagement and participation (noting further that communication is not the same as participation). Another stakeholder said that pre-task planning is a mechanism that allows the employee to be brought into the plan, and noted that for there to be active engagement, the value of training must be proven to the workers. Another stakeholder commented on the value of periodic employer-employee inspections of the workplace to identify potential hazards, as well as holding pre-task meetings each morning (on construction sites) to review the day's potential hazards.
- One stakeholder commented that programs that reward low levels of incidents actively discourage employee participation in reporting hazards. The stakeholder then described a program that incentivized identifying and addressing hazards, arguing that rewarding such actions successfully engages the employees. Finally, one stakeholder expressed her opinion that employees should be required to receive relevant Injury and Illness Prevention Program training at the beginning of employment, to ensure they are familiar with the workplace plan from the start.
- One participant cited the Cal/OSHA Consultation program as a beneficial resource for small employers. To assist small employers, the suggested that when contractors apply to be licensed, they should be informed of the need for an Injury and Illness Prevention Program plan for any work projects.
Crafting a Simple Rule
- Almost all of the stakeholders argued in favor of a rule that is simple and easy to understand. Many commented that if the rule is not kept as simple as possible, it will be overwhelming for small employers and they will ignore it entirely.
- Several stakeholders cited California's state standard as an example of a sufficiently basic rule, and many encouraged OSHA to not allow the federal rule to become any more complicated. Were the rule to become any less simple, they said, small employers would throw up their hands and ignore it and the rule would "collapse under its own weight." One participant suggested that the federal Injury and Illness Prevention Program rule should be even simpler than the California state standard, with concepts clearly separated so that any individual would be able to recite the general outline of the rule. Another stakeholder said that while they hoped the main framework would be straightforward, they understood the need for more detailed supplemental information to address the inherent complexities of various industries. One participant noted that added complexity might produce small gains for large employers, but there would be significantly larger losses for small employers.
Flexibility and Key Components of the Rule
- In addition to requesting a simple rule, stakeholders asked for a flexible rule. One stakeholder commented that the rule must be applicable across many different industries, or at least its most basic framework must be. The stakeholder also argued for flexibility on the enforcement side, suggesting that enforcement not be based on agency models, and that employers be free to tailor it to their own needs.
- Another stakeholder commented that the Cal/OSHA standard offered a good model for OSHA, and that the California state standard was a better model than the ANSI Z10, which would be too complex for small businesses. She suggested that an OSHA rule should strike a balance and that any OSHA rule should be broad-based, performance-oriented, and use leading indicators.
Support for California's State Standard
- Throughout the meeting, the majority of stakeholders voiced support for OSHA following California's regulatory approach for an Injury and Illness Prevention Program rule. Stakeholders highlighted the support of both labor and management alike for the core concepts of the rule as proof that Cal/OSHA's state standard has worked well and should be used as a model by OSHA. One participant requested that OSHA conduct a study to determine whether behaviors are truly changing and whether incidents and accidents are decreasing in frequency in California. In response, another stakeholder noted the RAND Corporation is currently conducting a study to assess the relative success of California's state standard. The stakeholder also mentioned that workers' compensation data, published annually, could provide valuable data for use in evaluating the rule.
- Two different participants noted that despite initial concern by business over the costs associated with the rule, the standard has largely been embraced, and cost fears have been assuaged. One stakeholder followed up by stating that, as the rule has withstood the test of time, it should be considered a successful model for OSHA to use. Another participant credited California's state standard with creating a true paradigm shift: instead of employers worrying about citations, they are now worrying about whether they have a safe workplace. One participant shared research findings showing that, with repeated inspections, facility violation rates of the California state standard decreased over time.
- A few stakeholders identified specific elements of California's state standard that they would like to see included in the OSHA rule. Several stakeholders felt the OSHA rule should cover nothing more than what California's state standard already covers. This sentiment came up most frequently when stakeholders voiced their concerns that OSHA's rule would serve as a back door for citing hazards not currently regulated, such as ergonomics. One participant asked whether it was OSHA's intent that this rule would become another General Duty clause, noting that Cal/OSHA sees their rule as a general duty requirement since the State previously had no 5(a)(1) requirement. This participant noted that when a workplace has appropriate safety procedures in place, even if a worker gets injured on the job, the employer will be cited for an Injury and Illness Prevention Program violation. The representative shared further that by issuing a special order to an employer, the employer does not receive a penalty but is instead offered specific hazard guidance. Such guidance is not normally provided when the employer is only issued a citation (though special orders are given alongside citations at times, he noted). The special order is issued if a specific hazard is either not obvious, or if there is only a very specific methodology approved for abating it.
- In more general terms, one or more stakeholders expressed support for the California state standard's elements that allowed for engagement, employee participation, training programs, and training sessions.
Recommended Changes to the California State Standard
- While many stakeholders were vocal about wanting to see OSHA adopt California's state standard without substantive changes, in response to a question from Mike Seymour of OSHA, several stakeholders suggested possible changes to the California state standard.
- One stakeholder believes the California state standard should be reordered, with the seven key action elements made more prominent. Another stakeholder believed that elements 4 and 6 (hazard assessment and hazard correction, respectively) should follow directly after element 1 (responsibility), as element 2 (compliance) sometimes runs counter to developing an effective safety plan. Another stakeholder wanted to see guidance promoting hierarchy of controls, a component she viewed as missing from the California state standard. As the goal is to identify problems early on so as to avoid an escalation of the issue, more emphasis should be placed on training employees to report problems as soon as they become aware of them. Another stakeholder believed that a wellness program component, not included in California's state standard, should be added to OSHA's rule. This participant feels that effective programs resulting in higher levels of health and fitness have been associated with a decrease in injury and incident rates. Another stakeholder believed that large employers should not be treated the same as small employers under the rule. Finally, one stakeholder wanted to see the element detailing the employee's responsibility to participate and communicate improved. In her opinion, California's state standard "missed the mark" on this element and has not produced the results California had intended.
- One participant advised OSHA to make its Injury and Illness Prevention Program rule even simpler and more pared down than California's state standard by, for example, eliminating the repetition of phrasing in the training section. This representative also believed that certain components should also be added to the rule, including a requirement for continuous improvement and the periodic updating and evaluating of a workplace plan. Finally, one stakeholder noted that two tools heavily relied on by employers to identify hazards are inadequate, and the OSHA Injury and Illness Prevention Program rule should encourage other methods. In particular, he felt that internal inspections miss a lot of potential hazards because inspectors are forced into visiting high-risk, often unfamiliar parts of their workplace, and that incident investigations are often poorly conducted, resulting in valuable information being overlooked.
Comments on Other Injury and Illness Prevention Rules
- Several stakeholders brought up other injury and illness prevention efforts when recommending regulatory approaches for the new Injury and Illness Prevention Program rule. One stakeholder believed that the 1989 Guidelines are a great place for OSHA to build from, although he noted the need to add a method for evaluating the success of controls put in place to deal with hazards.
- A stakeholder mentioned consensus standards as a means for developing an approach to crafting the Injury and Illness Prevention Program rule. He noted that as they are mostly systems-oriented and based on continuous improvement, however, they can be difficult for small businesses to implement. The stakeholder also said that the ANSI Z10 standard is intricate and particularly difficult for small businesses to institute. OSHA must attempt to publish a very basic rule that is applicable to and achievable by small employers. Most large employers, the stakeholder said, had already developed programs on their own.
- A stakeholder commented that OSHA should do all it can to leverage similar rules already developed. By doing so, the stakeholder said, OSHA could (1) help companies that have already adopted programs avoid a duplication of efforts and (2) potentially receive helpful guidance.
Recordkeeping and Documentation
- OSHA's Mike Seymour asked stakeholders to identify which elements of the Injury and Illness Prevention Program employers should be required to document. Multiple stakeholders spoke up in response, with the majority believing that some documentation was necessary to prove compliance on the part of the employer. Recommendation varied on which specific elements need to be documented.
- One stakeholder believed it was important for the overall assessment to be documented, though no blueprint could be offered since the elements that would need to be included vary widely between workplaces. Another stakeholder shared that the safety audit should be documented so that it is clear for anyone coming on-site what has been inspected. One participant stated that with current technology, it is not that onerous for employers to document multiple elements. Finally, one stakeholder argued that all controls put in place should be documented.
- One stakeholder commented that from the enforcement point of view, sufficient documentation is essential for employers to (1) prove that they are doing what they say they are doing and (2) provide protection against being associated with "bad actors" (those not taking any action). In addition, the representative noted that if employers have nothing written down, it can be very difficult to help them improve. Documentation needs to include trainings, inspections, and what was ultimately found. Another stakeholder believed that accident investigations should also be documented, as without documentation, employees may feel uncomfortable reporting any incidents to investigators. The stakeholder also thought corrective actions should be required. Finally, a stakeholder believed that OSHA's rule should require more be documented than what is currently mandated by California's state standard. One stakeholder shared that Cal/OSHA inspectors reference an employer's 300 Log during inspections.
Small vs. Large Employers
- Several stakeholders discussed the different needs of small and large employers when it comes to an Injury and Illness Prevention Program rule. Several stakeholders emphasized that a rule that is too complicated or demanding would overwhelm small employers and discourage compliance and engagement. Others discussed how OSHA will need to take special precautions to craft a rule that adequately addresses the needs of both large and small employers.
- Throughout the discussion, several participants commented that while California's state standard seemed to be highly successful for large and medium-sized employers, small businesses seemed to be struggling to adjust to it. One stakeholder shared his experience helping numerous small companies develop a rule based upon the model provided, and believes it is very possible for them to implement a practical, effective plan. Another stakeholder noted, however, that because of the way the rule is being enforced, small employers can get away with designing a plan and letting it sit idle and untouched on a shelf because they know they are not likely to be inspected. Another stakeholder added that many small employers are simply hiring outside help to craft a plan for them-including just substituting their company's name for another's-and thus are neither invested in nor familiar with their plans once they are developed. Another stakeholder continued that OSHA should keep the Injury and Illness Prevention Program rule as basic as possible to increase small business engagement.
- One large business representative commented that while his company had originally viewed California's state standard as exceedingly onerous, their apprehension dissipated after implementation and they realized the rule was far less costly than they had expected.
- A stakeholder said that even big businesses want to see a rule that covers small employers, and another hoped that OSHA would treat small employers the same as large employers.
- Another stakeholder reviewed the citation data for violations of the California state standard. He noted that companies with fewer than 20 employees had 40 percent violation rates, while companies with over 500 employees had 10 percent violation rates the first time they were inspected. While most citations are issued as "not serious," the stakeholder continued, there is no difference in the rate of "serious" citations between large and small employers.
Focus of the Standard
- Multiple stakeholders participated in a discussion on the merits of indirect versus direct regulation. How far, stakeholders wanted to know, would OSHA's Injury and Illness Prevention Program rule go in regulating previously unregulated issues? For example, several stakeholders brought up ergonomics as an area of concern. Some stakeholders believed that the Injury and Illness Prevention Program rule should address any potential hazard, so that even if ergonomics is not specifically regulated, a citation via Injury and Illness Prevention Program should be issued to a workplace if it is not actively taking steps to mitigate an obvious ergonomic hazard. Several stakeholders noted that such an approach could result in "back door" rulemaking, which elicited a mix of positive and negative reactions from the participants. One stakeholder stated that how OSHA deals with this issue could determine the ultimate success or failure of the effort. While employers would likely be open to a rule that regulated obvious hazards in the workplace-such as ergonomics in some professions-this stakeholder noted that if an inspector were to come in and state at the outset that no ergonomics plan was in place and thus issue a citation, employers would be incensed.
- Several stakeholders discussed the difference between a General Duty clause citation and an Injury and Illness Prevention Program citation, and how OSHA should orient itself in that subject area. A stakeholder noted that, where possible, Cal/OSHA inspectors issue citations for the most specific standard that exists under Title 8. If an issue is not specifically regulated, a citation can still be issued under its rule. Another stakeholder noted, however, that there was some precedent for regulatory restraint with the Injury and Illness Prevention Program rule.
- A business representative commented that a citation under the general duty clause often was viewed by employers as "I got caught," while a citation under an Injury and Illness Prevention Program was instead viewed as "How do I improve or make this better?" The stakeholder emphasized that the latter was by far the more productive response.
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. They were especially interested in hearing any justifications as to why certain groups should or should not be covered by 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 a 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
- Stakeholders were nearly unanimous in their feeling that all employers, with no exceptions, should be covered. Opinions on how uniform the coverage should be, however, did vary. Some stakeholders believed that while all employers need a plan, small employers in low-risk environments should not be required to take much more action after establishing a plan. Another stakeholder emphasized that just because OSHA might rarely inspect small employers for compliance, it did not mean that they should be excluded from the rule. A participant stated that OSHA must begin by determining what will be the smallest employer they will cover, and then develop the rule from there. Another participant noted that all professions, including the dental industry, teachers, etc. face inherent risks, so none should be omitted. Additionally, a stakeholder emphasized that low injury rates should not be introduced as a means for reducing coverage, as that simply works as an incentive for underreporting.
- Several stakeholders did believe that while the Injury and Illness Prevention Program rule should be universal in terms of the population covered, it should handle different industries individually. One stakeholder declared that industries must be categorized; it is difficult to develop a standard that works across the board, and by splitting employers up OSHA would gain more flexibility in designing various aspects of the rule. Multiple stakeholders cited Section 1509, specific to the construction industry, as a good example of how to tailor requirements for different industries. One stakeholder, however, recommended that an Injury and Illness Prevention Program be more streamlined and integrate all the necessary components into a single requirement. He argued that Section 1509 introduces additional aspects for construction workers to consider on top of what is found in an Injury and Illness Prevention Program. Another stakeholder said that while the basic framework of an Injury and Illness Prevention Program should be universally applied, specific requirements in certain sections could be added for certain types of employers.
- Upon prompting by OSHA's Mike Seymour, several stakeholders discussed the inclusion of the agricultural sector under an Injury and Illness Prevention Program. As good safety is good practice, one stakeholder said, he believed that agriculture leaders would support the rule. Several stakeholders argued that thanks to regulatory efforts portable toilets and water are now available for workers in the fields, and compliance with the heat stress standard is common. These stakeholders argued that while a break-in period was necessary for the different rules to be adopted and complied with, compliance is now a non-issue except for a few bad actors.
- A few stakeholders were willing to grant some sub-groups of employers an exception to coverage. One stakeholder believed that were OSHA to reduce coverage anywhere, it should be for small, low-hazard workplaces. Another stakeholder noted that while it can be difficult to group employers by industry to determine which could be omitted, it is far easier and more practical than grouping by size, as size changes and is not always a good indicator for level of risk in the workplace.
Handling Universal Coverage
- Multiple stakeholders implored OSHA to make the Injury and Illness Prevention Program rule simple enough so that all employers covered can understand it and comply with it. Stakeholders pointed out that in some industries, those responsible for crafting and implementing a plan commonly have no more than a high school or even 8th grade education, so the rule must be basic and easy to understand. One stakeholder noted how difficult it can be to develop a basic plan that gets across all of the necessary components. Citing her experience training employers who did not understand the California regulation, she said that once they were shown the rule in its most basic form, all were able to comprehend it (they had dubbed the rule "Find It, Fix It").
- Several stakeholders commented on the extra steps OSHA will need to take to ensure that small employers are adequately assisted in complying with the Injury and Illness Prevention Program rule. One stakeholder noted that small employers are the most likely to have to deal with the increased chance of injury presented by employing non-English-speaking employees, family members, and teenage workers, and stressed that such issues should be specifically addressed. The stakeholder said that OSHA should provide services as opposed to exemptions to help small employers develop adequate workplace plans.
- Multiple stakeholders addressed the notion of grandfathering in certain parties to OSHA's Injury and Illness Prevention Program rule. One stakeholder urged OSHA to do all it could to limit bureaucracy and unnecessary work for those that have already developed effective systems. He recommended that OSHA grandfather in all states that have rules in place now, and only require them to address any issues brought by OSHA that their rules clearly do not cover. Another stakeholder cautioned that not all states actively enforce the Injury and Illness Prevention Program rules they have already developed, so OSHA must be careful in uniformly accepting plans by employers from all "covered" states. Another stakeholder felt that California should "absolutely" be grandfathered in, and all efforts should be made to avoid increasing their burden. A different stakeholder noted that employers who have already developed a system would be happy to adopt new requirements as long as doing so does not force them to drastically rewrite the successful programs they already have in place.
Engaging Employees at All Levels
- Several stakeholders discussed the importance of engaging mid-level employees with the rule. Even if top- and bottom-level employees are engaged with the rule, a stakeholder noted, "the rubber meets the road" when it comes to middle managers. This stakeholder cited her experience worked on California's Heat Illness Prevention standard. Another stakeholder noted that it can be a challenge to get small employers and supervisors or foremen sufficiently up to speed. One stakeholder noted that training supervisors on California's state standard he had been amazed to find how many people knew so little about the rule. He commented that it would be valuable for OSHA to develop a self-audit checklist as a simple way for employers to ensure that they are on the correct track. Another stakeholder stated that the Cal-8 training program had been very successful in helping employers understand the rule, and offered to provide OSHA with the resource following the meeting. Finally, a stakeholder stressed the importance of encouraging management to take the rule seriously, stating that once employees see upper-level engagement, they will be more likely to take it seriously themselves. That, he noted, is critical to reducing "pilot error," the cause of most accidents.
Mark Hagemann, of the Directorate of Standards and Guidance, introduced the topic of how the Injury and Illness Prevention Program rule should be organized. Mr. Hagemann 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. Hagemann 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:
Tools for Self-Evaluation
- Multiple stakeholders noted the importance of OSHA providing a model program and/or self-audit system to employers. One participant shared that California's model program has been very helpful in assisting non-California-based employers develop their own programs. Another stakeholder noted the importance of OSHA developing an evaluation tool to assist employers in determining the success of a safety program. This would, the stakeholder said, help illuminate what ingredients are necessary to craft a successful Injury and Illness Prevention Program plan. A different participant continued that he had often heard people confused about how to initiate the evaluation process.
- In response to the above comments, OSHA's Mike Seymour brought up Form 33, which OSHA's consultation service uses to evaluate employers' safety and health programs. Mr. Seymour wondered if any of the participants had any experience with the form and whether they thought it was a success. A participant responded that he had seen it prove valuable as a starting point to determine how they are doing. A researcher said that he had heard others say that they found the form valuable as well.
Annual Review Component
- Multiple stakeholders viewed an annual review of the plan by the employer to be an essential component for the success of the rule. One stakeholder highlighted that such a requirement would force employer involvement, as the plan could not sit unused on a shelf indefinitely. Another stakeholder seconded the opinion, stating that an annual review would help OSHA avoid "cookie cutter" plans because someone would need to sign off on having updated the rule each year.
- Another stakeholder believed that as part of any program evaluation, employees should be asked via letter or survey what type of training or information they are missing. Telephone numbers should also be provided to employees that they can call-anonymously-at any time to voice comments or concerns about safety in their workplace.
- One participant suggested an "evaluation and improvement" element would be difficult for small businesses to grasp, and that improvement for them would only come over time.
- Echoing earlier discussion on recordkeeping requirements, a stakeholder wanted to ensure that OSHA includes a requirement for a written program in the rule. Additionally, the stakeholder re-stated her desire that OSHA include the "establish, implement, maintain" wording in the rule.
Language and Literacy Barriers
- Upon prompting by OSHA's Mike Seymour, several stakeholders discussed ideas on how to address the issue of non- and non-native English speakers, as well as those with limited literacy. One stakeholder believed a Web-based rule would be easy to make available in multiple languages. Another noted that, of California's approximately 15 million workers, 6 to 7 million are non-English speakers. He believed that the way to engage these employees is for a company to have a peer translator who is also educated in the subject matter. For example, it would be valuable to provide a translator for lead foremen who manage employees speaking potentially multiple languages. Another stakeholder emphasized the difficulties of making the rule available to all, sharing her struggles with implementing California's Heat Illness Prevention standard in the Central Valley where a portion of the population speaks a non-written Indian dialect.
- A stakeholder wanted to see OSHA organize the core elements of the rule in such a way that it would be easy for any employer or employee to remember them. She especially encouraged devising a mnemonic (offering an example on the spot-M.E.T.R.I.C., standing for "Management commitment, Employee involvement, Training Review for Identification and Control"). Another stakeholder believed that developing quick cards, as OSHA has previously done for other work, could go a long way towards comprehension and accessibility of the rule. It would be valuable, she believed, for them to also be available in multiple languages.
- Multiple stakeholders discussed the difficulties presented by multi-employer worksites. One stakeholder noted the trouble California has had in developing a rule that adequately addresses the various issues unique to multi-employer sites. He also contended that the rule must clearly define each party's roles and responsibilities, as that could provide some basis for defense if an incident does occur (provided the parties perform their duties). Another stakeholder noted that while they hold pre-job meetings on most multi-employer tasks to establish roles and responsibilities, sometimes a change of work causes new workers to arrive untrained at the worksite, creating a high-risk scenario.
- One stakeholder stated he did not believe that OSHA should address issues of multi-employer sites within the Injury and Illness Prevention Program regulation. California is working on developing a separate standard to address these issues, including the issue of affirmative defense for general contractors in the event of an onsite incident. This would clarify the legal obligations of employers who had taken affirmative steps to determine their necessary obligations prior to such incidents.
- Another participant shared that, in addition to multi-employer sites, another growing non-traditional work format is that of the dual employer, where temp agencies will staff more than 50 percent of all positions. Since 1996, the participant said, California has had a rule in place delineating joint responsibilities and individual responsibilities. The stakeholder believed that non-standard workplaces are going to be the way of the future, and thus OSHA must not ignore them and their respective challenges.
Appendices and Supplemental Information
- Multiple stakeholders spoke on the topic of appendices and the rule. One stakeholder, citing the fact that all information entered in appendices would remain static, believed that supplemental information should instead be placed on the Web as evolving materials. Another stakeholder disagreed slightly, believing that only the most critical information should be in the main rule; the remaining information should be in the appendices, and then all other information should be available as supplemental materials. A participant stated that there are many "side issues" that should not be part of the regulation but must be addressed to assist specific industries in developing successful plans. The stakeholder offered the example of putting a model program on the Web that all employers could reference.
- One stakeholder familiar with the California state standard stated that one of the biggest problems is the lack of an explicit whistleblower protection provision in the rule. He recommended that OSHA outline whistleblower protection in the appendices of its rule, re-emphasizing that employees have rights and that they should be protected if they complain. He noted that when the number of complaints goes down, the number of incidents goes up. For meaningful employee participation to occur, employees must know that they will be protected if they report a hazard.
- A stakeholder requested that OSHA make a selection of best practices available on the Web so that employers can reference them when crafting their own plans.
Defined Roles and Responsibilities
- A couple of stakeholders pointed out the importance of the rule requiring responsibilities to be clearly defined in the workplace. One stakeholder said that when she asks employees who is responsible for certain tasks, she frequently hears widely differing answers. Another stakeholder continued that a workplace safety officer does not always have access to the resources needed to make significant changes, so the rule should attempt to limit employees eligible to be safety officer to those with sufficient pull within an organization.
Paul Bolon from OSHA's Office of Regulatory Analysis introduced the topic of the Injury and Illness Prevention Program rule's economic impacts. 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 the potential costs and benefits of an Injury and Illness Prevention Program rule, during both implementation and maintenance of the rule.
Mr. Bolon 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, 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? 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 problems? When are mandatory programs necessary and when can voluntary programs successfully take their place?
Stakeholders provided the following comments and recommendations regarding economic impacts:
- Many stakeholders discussed the costs associated with implementing an Injury and Illness Prevention Program rule, either from experience or based on expectations. One representative spoke of his experience at a Fortune 500 company that was implementing California's state standard. He remarked that implementing the required plan was neither as onerous nor as burdensome as the company had originally expected. He also stated that it ended up being a beneficial experience, as it gave the company the opportunity to revisit and revise the processes they already had in place. His company had no annual budget specifically allotted for fixing hazards, but funding was generally made available if something needed to be addressed. If the abatement process required a capital improvement project, though, it would need to be approved first. He did note that the cost of implementing the program would likely be worse for "bad actors" that had no plan in place from which to build. Another stakeholder from the healthcare field mentioned that the cost of implementation had also been "bearable".
- Several stakeholders argued that the cost of implementation would be far higher for small employers than for large employers, as small employers often do not have many, or any, of the necessary components in place. One participant emphasized again the contrast between a company with an existing program that requires minor adjustments to come into compliance and one that has to start from scratch. This stakeholder believed that OSHA must focus on the latter employer. Another stakeholder noted that as long as the rule is straightforward, it should not end up being too burdensome even for small employers.
- One stakeholder suggested that Kaiser could serve as a valuable resource for data on the costs associated with implementing a program, and received assurance from OSHA that the experiences of industry representatives who had been through the process themselves would be mined for data during development of the rule.
- Several stakeholders discussed the costs and benefits of establishing and maintaining an Injury and Illness Prevention Program plan in the workplace. A number of them identified the opportunity cost of time spent developing a program as one of the primary costs of the rule and one that OSHA should focus on estimating ahead of time-this would be especially valuable for small employers. Stakeholders pointed out other costs associated with the program, including time for employee training, increased future orientation training, internal inspections, committee meetings, and documentation. The costs of implementing and maintaining a meaningful program are not trivial, many stakeholders agreed, and OSHA cannot ignore them. One stakeholder pointed out that the cost of wellness programs can be upwards of 5 to 10 percent of payroll, a sum that is significant enough to grab an employer's attention. Other stakeholders were quick to point out, however, that while costs may be high at the outset, over the long run employers could stand to save significant sums from successful hazard prevention. While the number of OSHA recordables inevitably increases at the outset of the program, they felt that total workers' compensation costs should subsequently decline.
- Several stakeholders also reviewed the benefits associated with successfully implementing an Injury and Illness Prevention Program rule. One participant noted the elimination of business disruption brought on by an incident in the workplace. Multiple stakeholders discussed the savings from reduced workers' compensation payouts. One stakeholder cited an example from a hospital, where 1 out of 1,000 employees were dedicated to a labor safety program (more stringent than an Injury and Illness Prevention Program). Despite the initial cost outlay, the company saved 10 to 15 percent in workers' compensation costs, resulting in a high return on investment. This stakeholder noted that he would forward all analyses of the implementation to OSHA.
- One participant commented on the method OSHA proposed to use to determine the costs and benefits of an Injury and Illness Prevention Program rule in the 1990s, citing this method as flawed. He noted that if OSHA does not factor in the costs of abating hazards that technically are already regulated, the agency cannot legitimately claim the benefits of such hazard abatement. OSHA must claim either both or neither, the stakeholder argued.
- One participant emphasized that if the California state standard is effective, businesses should not be required to spend resources adapting their programs just to meet OSHA's rule. Another California-based participant said that if the employer has an effective program and if OSHA's rule is not wildly different from California's, then the cost of meeting the OSHA rule should not be too great.
- Commenting on the number of employers already required to maintain similar programs, one participant noted that in addition to states where regulations are already in place, many large employers in other states maintain some form of safety program. Small employers will often have to start from square one, though, and OSHA must focus on assisting them first and foremost.
- One stakeholder noted that a federal Injury and Illness Prevention Program rule would bring business costs for companies operating outside of California in line with those in state. This would help California's competitiveness since the cost of implementation is not trivial and can put California-based companies at a disadvantage.
- Several stakeholders spoke of the intangible benefits associated with the "cultural shift" that workplaces undergo upon successful integration of an Injury and Illness Prevention Program. Especially for small employers where cost savings from hazard abatement may not be realized immediately, the newfound culture of safety is potentially the greatest benefit they will receive. One participant noted that small employers are often most responsive to the thought of an accident seriously injuring-or perhaps even killing-one of their employees. In small workplaces where every employee knows one another, she noted that the thought of such an accident was often enough to spur the small employer into developing a meaningful program. She shared that NIOSH has done work conducting these types of conversations to reach out to employers on the more personal level. Another participant shared his experience making a concerted effort since 2002 to address workplace safety. He noted that while costs are not trivial, even for one-hour training programs, the company has fully committed the time and resources necessary to achieving its goal. The cultural shift shown by both the commitment of upper-level management and the desire for a safe workplace by employees was essential in achieving change as well. As a result, they have seen workers' compensation costs fall from 46 to 47 million dollars down to the low 30 millions. In addition, injuries have dropped from more than 24 per year to less than eight.
- One stakeholder discussed the different methods available for quantifying the costs and benefits of the rule over time. She noted the many complexities involved in identifying direct connections and causations, but did cite recent attempts at quantifying the effects of absenteeism and presenteeism as potentially useful measurements.
- Several stakeholders shared information about studies that OSHA could reference on the topic. One stakeholder spoke of safe patient handling programs, noting that while they can be costly, the resulting injury prevention, preservation of livelihood, and quality of life gains can be significant. The stakeholder mentioned the work of Audrey Nelson as potentially valuable in the subject area. Another stakeholder spoke of a study coming demonstrating that employers with safety training programs experienced lower workers' compensation costs than those without training. Outside of safe patient handling, however, the stakeholder noted that few high-quality studies have been conducted in the field of safety training. OSHA should create the basis for more studies in the subject area.
- One stakeholder spoke of the costs and benefits associated with worker safety programs at multi-employer sites. This participant emphasized the importance of pre-job meetings with all subcontractors to ensure that all employers are "on the same page" and know their roles and responsibilities. She noted that her company offers training to sub-contractors, thereby lessening the risk the untrained employees bring to the worksite. The stakeholder also noted that audits and forward-thinking actions are essential to multi-employer worksite safety. The participant cited the success of "flex-and-stretch" programs as an example of an effective workplace intervention, as the time spent warming up before beginning the day's construction work results in significantly fewer injuries.
Leading Versus Lagging Indicators
- Multiple stakeholders offered their opinions on the use of leading versus lagging indicators. Several stakeholders emphasized the need for employers to become more proactive and to focus on steps to avoid injuries, as opposed to sitting around hoping that someone does not get hurt. Stakeholders cited examples of leading indicators including: activity levels and energy put into injury prevention, programmatic efforts dedicated to eliminating potential 300 Log entries, employee opinions on how safe they feel in the workplace and how committed they believe their employer is to safety in the workplace, how much "face time" employees have with their supervisor, how often a preventive tool is used when it could be used, how often audits are performed in the workplace, and the completion rate of addressing items identified in the audits within 30, 60, and 90 days.
- One stakeholder spoke of the intangible look in an employee's eyes as a way of noting how safe they feel, while another spoke of a similarly intangible shift in employee and workplace culture. The latter stakeholder spoke of analyzing why employees behave the way they do as a method for understanding how to abate risks, stating that inspections and fixing unsafe conditions are ultimately only a very small component of achieving a safe work environment. Another stakeholder discussed the value of interviewing employees to determine their perceived level of comfort in the workplace.
- A few stakeholders were quick to emphasize that while leading indicators are valuable, they are difficult to measure and develop successfully. These stakeholders all believed that leading indicators should not supplant lagging indicators, but supplement them. Lagging indicators such as deaths, exposures, and incidents are still all valuable to consider, one stakeholder argued. Further, he noted, without powerful leading indicators, lagging indicators absolutely cannot be abandoned at present.
Several stakeholders made comments during the day's discussion that did not neatly fit into one of the above categories. The comments included:
Engaging Workers' Compensation Carriers With the Rule
- Several stakeholders believed that workers' compensation carriers could be powerful allies in forcing companies to come into compliance with an Injury and Illness Prevention Program. The threat of being dropped by a carrier for not maintaining an adequate workplace safety plan would be significant to employers, and could go a long way towards forcing their engagement with the rule. In addition, the stakeholder continued, there are three times the number of loss control people as there are OSHA inspectors in the country, so they are important and valuable to have as partners. Another stakeholder noted that someone must be assigned to begin the process of bridging the gap between OSHA and workers' compensation carriers.
Compliance and Inspections
- Several stakeholders discussed OSHA's enforcement intentions. One stakeholder emphasized how program modification and improvement occurs over time, and requested that OSHA allow employers sufficient time to come into compliance with the new rule. This stakeholder preferred to see a natural course of adaptation as opposed to a rush by employers to achieve compliance. Another stakeholder voiced his concern that if an employer properly identifies a hazard via his Injury and Illness Prevention Program plan but has not yet had the opportunity to address it (whether the delay be due to time or money), it could become "Exhibit A" upon inspectors' entrance to the workplace.
Marketing the Rule
- One participant stressed that public support for the Injury and Illness Prevention Program rule will hinge upon how OSHA introduces the rule and how the standard is rolled out. The stakeholder offered California's Heat Illness Prevention standard as an example of a successful method for effectively getting regulation out into the general public.
- Another stakeholder believed that OSHA should use business advice persuasion as a primary means of promoting the rule, sharing with employers the savings they could achieve by applying the rule to their workplaces.
Following the day's discussion, the floor was opened to observers. Observers made the following comments:
- One observer requested that OSHA not make an Injury and Illness Prevention Program so prescriptive that companies will be unable to follow their industry's consensus documents (such as the document developed for fire departments nationwide). The observer also wanted the rule to be performance-based.
- An observer stated that joint safety-management committees do not always foster participation. The observer believed OSHA should leave the committees in as an option for workplaces to use, but not make it a requirement.
- An observer from the healthcare industry hoped that OSHA would develop a rule flexible enough that it could interface with regulations and compliance requirements that are already in place in the healthcare sector. Another observer representing the food industry seconded the comment, noting that the food industry is highly regulated, so it is important for OSHA to develop a rule that does not conflict with requirements already presented by other agencies.
OSHA's Mike Seymour discussed next steps prior to the conclusion of the meeting. He cited going before a Small Business Regulatory Enforcement Fairness Act panel as the next big milestone in the rulemaking process. Mr. Seymour also cited site visits as invaluable sources of information, and encouraged attendees to recommend any firms (especially small) they were aware of that had successfully implemented an Injury and Illness Prevention Program plan. He also encouraged all attendees to continue to submit comments and resources along the way to assist OSHA in developing the best and most effective rule possible. Mr. Seymour concluded that while an Injury and Illness Prevention Program was a very high priority, the soonest the rule could be produced would be 18 months based upon the regulatory process.
Jordan Barab concluded the meeting by once more encouraging all in attendance to participate in the regulatory comment period as well. Mr. Barab emphasized that all opinions on what is liked and disliked about the regulatory text are most valuable when they are based on experience. He encouraged the attendees to speak up for their companies and from their experiences, and not just rely upon the voices of their industry representatives. Finally, Mr. Barab said that OSHA wanted to hear from all parties throughout the regulatory process, no matter which way they feel about the proposed rule.