New OSHA Rule-Making In Progress: I2P2

The Occupational Safety and Health Administration (OSHA) is in the process of developing new workplace standards that would call upon employers to identify hazards unique to their workplaces and develop a process for fixing them.  Known as the Injury and Illness Prevention Program Standard, it is commonly referred to as I2P2.  In general, the new standard would require all employers to develop and implement a plan that systematically identifies hazards in their particular workplace, and then establish means and methods to eliminate those hazards.  In a recent address to the American Society of Safety Engineers, OSHA Assistant Secretary David Michaels stated that the new standards will be “risk-based.”  Every employer governed by OSHA would be required to conduct and document specific job related hazards and then document its protocol on preventing injuries from those hazards.  The I2P2 will be in addition to any current safety program the employer has in place.

In January, 2012 OSHA took the first step toward rule-making when it notified the Small Business Administration (SBA) that it intends to convene a small business review panel.  A small business review is statutorily required before OSHA publishes a proposed rule.  The SBA is required to assemble a panel of small business representatives to which OSHA will provide its proposal and supporting documents.  The panel will review and provide its report to OSHA.

In support of its initiative, OSHA released a white paper supporting its position on injury and illness prevention program ( WhitePaper.html).  In it OSHA describes I2P2 as a “proactive process to help employers find and fix workplace hazards before workers are hurt.”  It states that many states already have such programs in place and that data shows them to be effective at reducing injuries and illnesses.  OSHA’s I2P2 will constitute a new national standard.

However, a review of comments by safety professionals shows that there is less than overwhelming support for adoption of a new national standard.  For instance, the Rand Corporation recently conducted a study on the effectiveness of the Cal-OSHA Injury and Illness Prevention Program (IIPP).  Its draft report suggests that California’s program has had little impact on fatalities, and more broadly, that such programs do not improve safety.  (Ogeltree Deakins, 1-23-12, Tressi L. Codaro).  In her article Ms. Codaro points out that “at first blush, such a standard might sound like a good thing, and in fact many employers already have implemented their own program.  Problems arise when OSHA wants to mandate safety and health programs.  The most significant risk to employers from a mandatory program would come from the enforcement of the I2P2 standard.  In the event of an accident, OSHA will undoubtedly take the position that if the employer’s plan had been adequate, the accident would not have occurred, and the result could be stiff penalties and harsh press releases.  Additionally, I2P2 appears to be a way to back door rulemaking for an ergonomics standard.  Under the I2P2 standard, OSHA would no longer need an ergonomics standard.  Instead, the employer would be required to address ergonomic hazards, and the failure to do so would be a violation of the I2P2 standard.

In this election year it remains to be seen if OSHA is able to push I2P2 into law.  However, rest assured that the supporters of this latest OSHA initiative will not give up the fight.  The details of the program remain to be seen.  Employers concerned about the possible effects of the federal I2P2 proposal should continue to monitor the debate.

Will Bland
As a Member at Mouledoux, Bland, Legrand & Brackett, Will Bland regularly represents the interests of vessel operators, both brown water and offshore, oilfield operators, and their insurers in matters involving personal injury, collisions, sinkings, products liability, toxic torts, and contractual disputes. His practice areas include maritime personal injury defense, maritime collision and property damage insurance coverage, contractual indemnity, longshore matters and general litigation. Will can be contacted at (504) 595-3000 or via e-mail at
Will Bland