Regulation nationRegulation nation

Robin Lee Allen

In late January, attorney Matthew Deffebach was in the middle of three trials involving the Occupational Safety and Health Administration, and he says he expects that number to grow.


Deffebach, a partner with Haynes and Boone LLP, heads up the law firm’s OSHA practice in Houston, a vantage point from which he has seen the federal agency ramp up its enforcement efforts in the past few years.


While OSHA once focused on blue-collar industries, its sights have expanded to include more retail and other service businesses, including restaurants, he said. And a pending rule that would require employers nationwide to create Injury and Illness Prevention Programs could mean even more scrutiny from OSHA investigators, with the potential for legal actions.


“That regulation would be a game changer,” Deffebach said, “because it would require employers to have an ongoing, investigative, preventative process in place instead of being reactive [and addressing problems after an accident occurs].”


Often referred to as I2P2, the new rule would require employers to identify and address potential problems before injuries occur, with the goal of reducing the number and severity of workplace injuries and the costs associated with them, according to OSHA officials.


“OSHA believes that workers will be better protected if each employer develops a proactive program to help them find hazards in their workplaces and develop a process to fix those hazards so that employees don’t get hurt,” the agency wrote in a white paper issued in January.


That same white paper noted that although the number of workplace deaths and injuries has dropped by 60 percent in the four decades since OSHA was created, the numbers still remain high. Twelve workers die daily, which translates to almost 4,500 deaths a year, according to the Bureau of Labor Statistics. Meanwhile, more than 3.3 million workers suffer serious work-related injury or illness annually. Together, deaths and injuries cost about $1 billion a week, OSHA said.


Thirty-four states already have some type of Illness and Injury Prevention Program in place, and 15 states have mandatory programs affecting all or select employers, including California, Colorado, Hawaii, Louisiana, Michigan, Minnesota, Mississippi, Montana, North Carolina, Nevada, New Hampshire, New York, Oregon, Utah and Washington.


Fatality rates in California, Hawaii and Washington, where prevention programs are in effect, were almost 31 percent below national averages in 2009, OSHA noted in its white paper. And the agency estimates that a federal program could reduce injuries by 15 percent to 35 percent for employers who do not now have safety and health programs, saving $9 billion to $23 billion per year in workers’ compensation costs, respectively.


In May 2012, OSHA published its proposed I2P2 rule, noting that it would address:


• Management duties, such as establishing policies, allocating resources and communicating roles and responsibilities


• Employee participation in establishing, maintaining and evaluating the program 


• Hazard identification and assessment


• Hazard prevention and control


• Education and training


• Program evaluation and improvement.


In short, I2P2 would require employers to assess their work processes, identify potential hazards, and correct or minimize those hazards, Deffebach explained. But while such a process is well and good for a manufacturing facility where processes and employees remain relatively unchanged for long periods of time, restaurants are different, he said.


“What happens when a new mixer is brought into the kitchen?” he asked, noting that restaurant employers could spend an inordinate amount of time assessing potential hazards and training employees — many of whom are young and speak different languages. 


“The biggest concern for the restaurant and service industries is they have a lot of … employee turnover,” he said. “It’s very different than if I run a plant and make something. The way I do it is not going to change dramatically, so it’s easier to create a catalog of processes. It’s an administrative nightmare for restaurants and retail.”


That prospect has government and many businesses locking horns. After OSHA published its proposed I2P2 rule in May 2010, it conducted five stakeholder meetings that same year, one each in Dallas; East Brunswick, N.J.; and Sacramento, Calif.; and two in Washington, D.C.


Up for debate was the scope of the rule, including what industries, business sizes and hazards it should apply to, as well as how it should be organized and regulated.


OSHA summarized the meetings as having “spirited discussion” between those in favor of the new rule and those who urged the agency to work with regulations already on the books.


“Other disagreements included whether a new law should cover all businesses or exempt smaller employers, the efficacy of mandating management/employee committees, the value and best implementation of a record-
keeping component, and, finally, what the economic impact of a rule would be,” OSHA officials said in a written statement.


The agency is expected to release a proposed rule this month, and then will gather comments from small businesses during the small business review process before issuing a formal proposal, Deffebach said. After that, a comment period and public hearings will follow.


In all, OSHA officials said it’s likely that a final rule won’t be published until mid- to late 2013.


Deffebach noted that the agency is being smart in making sure that the eventual rule can withstand legal challenges. And, of course, a change in administration could scuttle the I2P2 efforts completely. 


In the meantime, he advised that restaurant employers who aren’t already focusing on safety issues would be wise to start. Even as I2P2 wends its way through the regulatory process, employers should begin assessing hazards and training employees how to avoid injury.


“If OSHA comes in and realizes that an employer isn’t even trying, then investigators and lawyers will look on them as a bad actor,” he said. “Those kinds of employers could end up in a bad place with the agency.”

Contact Robin Lee Allen at [email protected]
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