August 5, 2016
By Michael Wood
As federal OSHA head David Michaels approaches the presumed end of the longest serving tenure in the agency's history, it's not surprising that the agency has been rushing to resolve a number of issues. And when you add to that mix the unexpected decision by Congress last fall to increase federal OSHA penalties, we here in Oregon have been getting quite a few questions about exactly how we will respond to a variety of federal rules and other changes.
So, first things first, when a federal rule change takes effect, that generally does not mean it has taken effect in Oregon (many stories in the media rely on national sources and frequently do not make that distinction). Strictly speaking, we do not enforce federal rules. We enforce state rules adopted under Oregon law (that does include federal rules that we have adopted by reference, just to add a touch more confusion to the mix).
What a new federal rule triggers is a requirement that we adopt a rule that is "at least as effective" as the federal rule, generally within six months. While "at least as effective" doesn't necessarily require our rule to be at least as stringent as the federal rule, we would need to be able to make a very convincing argument to explain why we adopted something "less than" a new federal requirement.
So, for example, our silica rule can vary from the federal rule (our current proposal does indeed include some variations, although they are generally not substantive) – but it's difficult to see a situation where we could adopt a less protective permissible exposure limit.
On the other hand, the rule we developed on reporting amputations does a better job than the federal rule, we believe, in requiring employers to report events that represent the greatest likely hazard by focusing on bone loss (and also including avulsions, which technically fall outside the federal rule). So, we believe we have a good argument that our rule is "at least as effective as" the federal rule, even though there are some minor "amputations" without bone loss that are required to be reported in federal states, but not in Oregon.
With rules related to recordkeeping, we have less flexibility – in those rare cases, we are actually required to adopt a substantively identical rule (although we still can exceed the requirements of the federal rule in certain respects).
And then there are requirements that really start outside of rulemaking. Federal OSHA expects us to have penalty authority at least equivalent to theirs, and they expect us to have an enforcement program that is at least as effective as theirs in encouraging employer compliance through effective deterrence (of which penalties are a part). Those are actually two distinct expectations, and the first one is a bit easier to define. So when federal OSHA implemented the congressional decision to increase the maximum penalties, that generated a requirement that we increase our maximum penalties in order to maintain our status as a federally approved state plan, and we are going to be asking the Legislative Assembly to do so in 2017.
But the question of exactly how we use that penalty authority will remain a question that must be considered in light of our overall approach to enforcement – taking into account, for example, our much higher enforcement presence – just as it has in the past. And that approach is one that we will continue to lay out through rulemaking. We will be updating those rules after the law has been changed to give us the underlying penalty authority comparable to federal OSHA.
How those details work out in Oregon will be an issue that we will work out in Oregon, in discussions with Oregon employers and workers. And, no doubt, our approach will continue to differ from the federal approach in a number of significant respects.
And for the time being? In Oregon OSHA's jurisdiction, nothing has changed.
If you want to receive the Resource Newsletter, sign up for future issues here.
Reprinting, excerpting, or plagiarizing any part of this publication is fine with us. Please send us a copy of your publication or inform the Resource editor as a courtesy. If you have questions about the information in Resource, please call 503-378-3272.
For general information, technical answers, or information about Oregon OSHA services, please call 503-378-3272 or toll-free within Oregon, 800-922-2689.