It’s been five years since the American Federation of State, County and Municipal Employees (AFSCME) petitioned OSHA for a regulation to protect workers from infectious diseases. This week, OSHA will be taking a major step toward proposing such a rule. The agency and the Small Business Administration (SBA) will be convening a meeting of 50 representatives of small organizations (i.e., small businesses, not-for-profit organizations not dominant in their field, and local governments serving less than 50,000 residents) that would likely be affected by an OSHA infectious disease regulation. Such employers would include hospitals, doctors’ offices, and long-term care facilities which provide direct patient care, as well as a few other settings with potential exposure to infectious agents, such as laboratories, medical waste and laundry facilities. AFSCME won’t be at the table---they aren't a small entity---but they’ll be able to listen in. So will the rest of us, and that will be a first.
The convening of small business representatives is required of OSHA (and the EPA) under the Small Business Regulatory Enforcement Fairness Act (SBREFA). The 1996 law gives "small entity representatives" (SERs) a special mechanism---not given to the rest of us----to provide face-to-face feedback on the impact of a potential regulation long before the new rule is formally proposed. OSHA’s conversation with the SERs will take place on Wednesday, Nov. 12 (1-4 pm (ET)), Thursday, Nov. 13 (9-noon (ET)), and Friday, Nov 14. (1-4 pm (ET)). Some will be there in-person, others by telephone. OSHA is giving the public an opportunity to listen in to the conversation. (1-866-395-6878, participant code: 1294950)**
In advance of the meeting, the participants received detailed information on what the agency is considering in a proposed regulation, draft regulatory language and estimates of the cost to establishments of complying with the regulation. OSHA has that information posted on its website (and it is also posted on Regulations.gov [docket # OSHA-2010-0003]). The SERs will offer their insight and opinions during both the convening and in written comments. As required by SBREFA, all of their feedback is compiled into a report and submitted to OSHA’s assistant secretary within 60 days. The agency is expected to respond to the comments, including, by making modifications to its regulatory approach and analyses.
SBA and OSHA have 50 SERs lined-up for this SBREFA process.They include: Good Shepherd Nursing Home (Wheeling, WV), Alice Peck Day Hospital (Lebanon, NH), Lexington Regional Health Center (Lexington, NE), Abiline Family Foot Center, Southridge Village Assisted Living, Pathways Hospice, Crescent Laundry (Davenport, IA) and Hillside Memorial Park and Mortuary. They will be providing feedback on OSHA's draft proposal to have affected employers develop a "worker infection control plan" (WICP). The WICP is designed to address three pathways of exposure: (1) contact (e.g., MRSA, norovirus, vancomycin-resistent enterococcus); (2) droplet (e.g., SARS, Ebola, pneumonia); and (3) airborne (e.g., tuberculosis, varicella zoster virus.) Other provisions of the draft proposal include medical surveillance and training.
The analysis that OSHA has already conducted suggests that 94 percent of hospitals and 42 percent of physicians' offices already have written infection control plans. OSHA estimates that 75 percent of hospitals and 54 percent of long-term care and nursing homes provide annual infection control refresher training to their employees. (I wonder if any of the SERs will admit that they don't have written infection control procedures?)
A few things have troubled me about the SBREFA requirement. One is that the OSHA rulemaking process already has plenty of opportunity for businesses---small and large---to provide comments to the agency on a proposed regulation. It’s the same opportunity given to unions, community groups, trade associations, and anybody else who wants to provide their views, expertise or data to the agency. OSHA proposes a regulation (albeit rarely) and we all have the same time period to submit written comments and/or participate in OSHA’s public hearings. Why should a hand-picked group of small businesses be granted the special advantage of influencing what is contained in the OSHA proposal that the rest of us will be commenting on?
Another is that workers themselves have a lot to gain and lose when it comes to worker safety regulations. Nobody’s given them the special privilege of a formal mechanism to influence what OSHA proposes in a new worker safety regulation. When it comes to worker safety, why are the voices of small businesses deemed more important than the people who actually face the hazards?
Also that OSHA's SBREFA process happened largely behind closed doors. Not too long ago, you might hear through the grapevine that OSHA convened a SBREFA panel on a long-awaited rulemaking. But the meeting was not announced publicly---not even to just let us know that it was going to happen. In more recent years, some key stakeholders may have been invited to attend as observers to the convening of SERs, but even those invitations were hush-hush.
After nearly 20 years, I’m glad to see that OSHA will be allowing the public to listen into its convening of SERs. We'll be able to hear for ourselves their views on a possible OSHA regulation to protect workers from infectious diseases. I've always been skeptical that the SBREFA process provides meaningful information that can't be obtained during the standard notice and comment rulemaking period. I'll find out this week whether or not that's true.
Nov 12, 2014 Update: The Center for Effective Government released today a report on the SBREFA process entitled "Gaming the Rules: How Big Business Hijacks the Small Business Review Process to Weaken Public Protections." Their analysis includes a behind the scenes look (made possible by FOIA) of the SBREFA process for seven proposed OSHA regulations. The authors explain the influence of industry trade associations and Washington, DC-insiders in identifying the SERs.
**OSHA had a typo on its website for the conference line. It was an 888 number, not an 866 number.