Last week, OSHA published its new “Recommended Practices for Safety and Health Programs,” which advises employers to establish comprehensive internal safety and health programs and provides extensive guidelines and resources for doing so. In releasing the updated recommendations, OSHA argues that employers adopting such programs could reduce injuries and illnesses and promote sustainability.

The non-binding recommendations come more than two years after OSHA shelved plans to issue a regulation requiring employers to maintain “Injury and Illness Prevention Programs” (sometimes referred to as “I2P2”). However, a number of states already require some or all employers to have such programs. OSHA first published voluntary Safety and Health Program Management Guidelines in 1989.

OSHA published both in the form of a 40-page online guide and a web tool. The guidelines appear to recognize that developing a robust safety and health program can be a long-term process, so they begin with a quick-start guide, followed by detailed action items for employers to follow.

Detailed action items and extensive resources

OSHA’s recommendations are organized into “core elements,” as it calls the building blocks of a safety and health program. Core program elements include management leadership, worker participation, identifying and assessing hazards, preventing and controlling hazards, education and training, and program evaluation and improvement. For employees touched by multiple employers, the guidelines also have a section focused on coordinating among host employers, contractors, and staffing agencies.

Along with the recommendations for creating a safety and health program, OSHA also posted extensive links to tools and resources from OSHA and third parties (such as ANSI and the National Safety Council) to assist in program development. The tools include a “program audit tool,” which OSHA says will help employers “evaluate your program and how well your organization has implemented it, identify remaining weaknesses, and use the results to focus on continual improvement.”

The resources link to articles about controlling specific hazards, including everything from hearing conservation and safe computer workstations to machine guarding and confined spaces. In addition, OSHA linked to “success stories” and case studies of companies reportedly preventing injuries and illnesses by changing business practices, correcting hazards, or participating in various OSHA voluntary programs. OSHA also linked to the National Safety Council’s “CEOs Who Get It” awards for executives who built strong safety cultures.

Helpful guidance that also presents risks?

For now, OSHA’s recommendations are not binding. As noted, in 2014, OSHA chose not to move forward with a mandatory I2P2 rule that would have made safety and health programs mandatory. For many employers, OSHA’s recommendations and tools will provide a helpful starting point for building a safety program. Indeed, an employer that responsibly creates, implements, and executes such a program may not only experience improved safety benefits but also will often gain an argument in defending against enforcement actions, namely that it took reasonable precautions to prevent hazards and injuries.

However, employers should take care in establishing and managing such programs to ensure that they comply with OSHA regulations and the employer’s general duty (under the Occupational Safety and Health Act’s “General Duty Clause”) to maintain a workplace “free from recognizable hazards that are causing or likely to cause death or serious harm to employees.”

While a reach, in the future OSHA may argue that, especially in light of its detailed advisory to create such programs, an employer had a general duty to create such a program or that an employer created or managed a program improperly, thus creating a hazard. In fact, in the case of workplace violence, OSHA already has invoked the General Duty Clause on its web site and hinted that an employer which experiences violence or threats of violence is “on notice of the risk of workplace violence and should implement a workplace violence prevention program combined with engineering controls, administrative controls, and training.”

Further delay for OSHA injury and illness electronic reporting rule

The guidance on safety and health programs came the same week as another OSHA action relating to employer policies and programs. On Thursday, OSHA again delayed enforcement of its electronic recordkeeping rule until at least December 1st. The rule’s anti-retaliation provisions have implications for employer safety incentive programs and drug testing policies.

The provisions were scheduled to take effect last August, but OSHA has delayed them slightly while the rule has been challenged in court. The latest delay comes in response to a request from the judge in that case, who requested the delay in order to consider the plaintiffs’ request for an injunction against the rule.

Both the electronic recordkeeping rule and the revised guidance on workplace safety and health programs could create enforcement risks. Employers that are interested in creating or revising safety and health programs or that need to review drug and safety incentive programs under the anti-retaliation rules should consult with counsel for a program or policy review to ensure compliance.

For additional information, please contact Brian Hendrix, Avi Meyerstein, or Joe Orlet.