SAFE PRACTICE
I2P2: When Will OSHA Finally Pull The Trigger? OSHA identified six major elements
DARREN J. HUNTER, ROONEY, RIPPIE & RATNASWAMY LLP, CHICAGO A
lthough the safety world has been gearing up for I2P2 for more than 30 years, very few employers
have implemented full I2P2 programs. Te reality is that few employers actually understand I2P2 and its potential impact. I2P2, the catchy acronym for Injury
and Illness Prevention Program, is es- sentially a proactive process by which management and employees come together to identify and address hazards and risks in the workplace. At this time, the I2P2 process is voluntary, but OSHA intends to make it mandatory. OSHA published guidance on I2P2 in the 1980s and drafted a proposed rule in the 1990s, but it held off on issuing a formal I2P2 rulemaking. All signs indicate that OSHA will finally pull the trigger and issue a Notice of Proposed Rulemaking (NPRM) in 2014. Te Assistant Secretary of Labor, Dr. David Michaels, recently said I2P2 is OSHA’s highest rulemaking priority, and OSHA publicly stated plans to issue a NPRM in the fall of this year. In the last few years, OSHA has laid
the groundwork to support its I2P2 initia- tive. In 2010, it held a series of stakeholder meetings to gather information, focusing on potential strengths and weaknesses of the program. In 2011, OSHA issued a directive called the OSHA Safety and Health Management System, establishing a safety and health management program for OSHA employees. In 2012, OSHA issued a detailed
White Paper supporting an I2P2 rule. In the White Paper, OSHA cited, among other things, that 34 states have already adopted some form of I2P2. Cal-OSHA, for example, has had a comprehensive I2P2 program since the 1970s, and many other states have a variation of I2P2 as part of their states’ workers’ compensation scheme. A copy of the White Paper can be found at
www.osha.gov/dsg/topics/safetyhealth/ OSHAwhite-paper-january2012sm.pdf. In 2013, OSHA released an I2P2 Fact
Sheet. OSHA emphasized that compli- ance with the Fact Sheet was voluntary, but encouraged employers to get started. Te I2P2 Fact Sheet is likely a preview of what the I2P2 NPRM will look like. See
www.osha.gov/Publications/OSHA3665.pdf.
60 | MODERN CASTING May 2014
of an effective I2P2 program: 1. Management Leadership. Employ- ers are required to establish safety and health goals and define actions that are needed to achieve the goals. Employers must designate at least one person and provide sufficient resources to implement the program.
2. Worker Participation. Employers must consult with employees on the imple- mentation of the program and involve them in updating and evaluating the program. Employers must also include employees in inspections, encourage employees to report hazards and near misses, and protect employees who participate in the program.
3. Hazard Identification and Assessment. Employers must proactively assess workplace hazards, including soliciting input from employees, investigating injuries to identify the hazards that may have caused them, and informing employees of the hazards.
4. Hazard Prevention and Control. Employers must prioritize and control hazards that are identified, provide interim controls, verify that the control measures that have been implemented are effective, and communicate the hazard control plan with employees.
5. Education and Training. Employers must provide education and training to employees in the language they understand, including how to follow procedures for reporting injuries, how to recognize hazards, ways to eliminate hazards, and how to participate in the program.
6. Program Evaluation and Improve- ment. Employers must periodi- cally evaluate the effectiveness of the program and modify the program, as necessary, to correct deficiencies and to assess ways to make improvements. Clearly, any reasonable person must
support an initiative that is designed to enhance and strengthen workplace safety. Te I2P2 process, however, raises several legitimate concerns from the perspective of the employer. On the most fundamental level, once an employer identifies a hazard, the employer is on notice that employees are at risk. Terefore, the employer will be
required to take prompt corrective action or run the risk of exposure under the law. In an OSHA inspection, for example, the failure to abate hazards identified under I2P2 may lead to a Willful citation. Tere are additional layers of exposure in the workers’ compensation and product liability arenas for known risks. Te viability of the self-audit privilege is also at stake. Unfortunately, it already has its limitations, but I2P2 may gut the privilege in its entirety. Correct identification of workplace
hazards raises additional concerns. To be fair, if a workplace hazard is clear-cut from the most objective viewpoint, the employer should implement corrective ac- tion as quickly as feasible. Not all hazards are clear-cut, however, as there is often a certain amount of subjectivity in hazard analysis. For example, what obligation does an employer have under I2P2 to abate alleged workplace hazards if the hazard analysis can fairly and reason- ably be interpreted in more than one way? How should the employer address the technical feasibility and economic reasonableness of abatement? How much time does an employer have to implement corrective action? Te bottom line is that OSHA has
been studying this issue for more than 30 years and has not implemented a rule because these concerns are real. For the most part, OSHA’s standards are prescrip- tive in nature, so employers are on notice of what measures and steps they need to take to come into and remain in compli- ance. I2P2, on the other hand, is subjective in nature, so employers will not necessarily be on notice to the same degree. OSHA has made it clear that it in- tends to issue a NPRM on I2P2 in 2014. While we are aware of the basic elements that OSHA will include in the proposed rule, we must to assess whether OSHA will adequately address the inherent concerns associated with the subjectivity of I2P2. If so, I2P2 may be a tool that em- ployers and employees can utilize together to improve workplace safety. If not, I2P2 may lead to more problems than benefits. We will likely find out soon enough.
Contact the author at
darren.hunter@
r3law.com,
www.r3law.com.
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