OSHA’s Big Pivot: How the New Electronic Recordkeeping Rule Impacts Injury Reporting, Prevention and Drug Testing Programs

OSHA’s long-awaited Final Rule on Electronic Recordkeeping is out and employers need to prepare for some significant new changes. During this webinar, our presenters will break down the rule to identify steps your company can take now to ensure compliance by the Rule’s most immediate effective date on August 10, 2016. Topics to be covered include:

  • What companies must do to comply with OSHA’s new electronic reporting requirement
  • Potential impact of OSHA electronically posting your injury and illness records
  • Obligations to provide employees notices of their right to report injuries and be free from retaliation
  • How the new Rule impacts post-accident drug and alcohol testing
  • Incentive and reward programs under the new Rule

Click here to listen to the recording of the webinar and slides are available here.

OSHA Issues New Spring Regulatory Agenda

It’s that time of year again…when OSHA tells us what is on the horizon for rulemaking activity. On May 18, 2016 the spring semiannual regulatory agenda for federal agencies was published. This Regulatory Agenda provides a complete list of all regulatory actions that are under active consideration for promulgation, proposal, or review and covers regulatory actions for over 60 federal departments, agencies, and commissions.

The Regulatory Agenda for the Department of Labor includes a total of thirty two regulatory entries for OSHA specific actions. This is up from twenty three regulatory actions identified last year. The increase is due to more pre-rule stage regulatory actions that OSHA has identified where the agency is gathering relevant information. In this year’s regulatory agenda there are nineteen regulatory actions in the pre-rule stage, which is up from seven pre-rule regulatory actions identified last year.  Seven regulatory actions are in the proposed rule stage and six of these specific actions are in the final rule stage.

New to the regulatory agenda is Noise in Construction and Preventing Workplace Violence in Healthcare. For both of these initiatives OSHA anticipates issuing Requests for Information in November 2016.  Regarding noise in construction OSHA claims “Two recent studies of occupational hearing loss conducted by Department of Energy and National Institute for Occupational Safety and Health concluded that a significant percentage of construction workers have suffered from hearing loss over the duration of their careers. It has been noted that construction work is excluded from the OSHA Hearing Conservation Amendment that is required for general industry work. Also existing construction noise requirements lack the specificity of a general hearing conservation program that must be implemented for general industry work.”  And for workplace violence in healthcare, OSHA states that the RFI will solicit “information primarily from health care employers, workers and other subject matter experts on impacts of violence, prevention strategies, and other information that will be useful to the Agency if it decides to move forward in rulemaking. OSHA will also solicit information from stakeholders, including state officials, employers and workers, in the nine states that require certain health healthcare facilities to have some type of workplace violence prevention program.”

Combustible Dust and Communication Tower Safety remain in the pre-rule stage, with a goal of a SBREFA panel convening for Combustible Dust in October 2016. Crane Operator Qualifications in Construction and Beryllium continue to be in the proposed rule stage.  Last year OSHA added agency action for “Clarification of Employer’s Continuing Obligation to Make and Maintain Accurate Records of Each Recordable Injury and Illness,” which is meant to “clarify that the duty to make and maintain an accurate record of an injury or illness continues for as long as the employer must keep and make available records for the year in which the injury or illness occurred. The duty does not expire if the employer fails to create the necessary records when first required to do so.”   OSHA has identified this as regulatory action which is in the final rule stage and anticipates issuing a final rule in October 2016. This agency action is an attempt by OSHA to undo the holding in the U.S. Court of Appeals for the District of Columbia’s decision  in the Volks case, which held that OSHA could not issue citations for failing to record an injury or illness beyond the six-month statute of limitations set out in the statute. AKM LLC d/b/a Volks Constructors v. Sec’y of Labor, 675 F.3d 752 (D.C. Cir. 2012).

Additional regulatory actions under consideration by OSHA include:

 

RULE

 

ANTICIPATED AGENCY ACTION

 

Walking Working Surfaces – General Industry (Subparts D and I)

 

Final Rule in August 2016

 

Clarification of Employer’s Continuing Obligation to Make and Maintain Accurate Records of Each Recordable Injury and Illness

 

Final Rule October 2016

 

Occupational Exposure to Combustible Dust

 

 

Initiate SBREFA October 2016

 

Crane Operator Qualification in Construction

 

Notice of Proposed Rulemaking – December 2016

 

Infectious Disease

 

Notice of Proposed Rulemaking –
March 2017

 

Process Safety Management and Prevention of Major Chemical Accidents

 

Complete SBREFA in June 2016

 

Tree Care Standard

 

Stakeholder Meetings in July 2016

 

The full federal Unified Agenda and Regulatory Plan can be found online at:

http://www.reginfo.gov/public/do/eAgendaMain

OSHA Issues Electronic Recordkeeping Final Rule

Today, a copy of OSHA’s final electronic rule, “Improve Tracking of Workplace Injuries and Illnesses,” was made available for public inspection prior to release in the Federal Register on May 12, 2016.  In November 2013, OSHA published a notice of proposed rulemaking to add electronic recordkeeping requirements that would require certain employers to electronically submit to OSHA injury and illness recordkeeping information on a quarterly and/or annual basis. Additionally, the proposed rule would establish a public searchable website where OSHA would make employers’ injury and illness records available to the general public. In August 2014, OSHA issued a supplemental notice of proposed rulemaking to include provisions that would prohibit employers from taking adverse [termination, reduction in pay, reassignment to less desirable position] action against employees for reporting injuries and illnesses.

The final rule is similar to the proposed rule and has two main elements, electronic submission and updates to how employers inform employees to report work-related injuries or illnesses.

Electronic Submission

The final rule requires electronic submission of Part 1904 recordkeeping records to OSHA depending on the employer’s size and industry.

  • Employers with 250 or more employees (including part-time, seasonal or temporary workers) in each establishment to electronically submit their 300, 300A and 301 forms to OSHA on an annual basis;
  • Employers with more than 20 but less than 250 employees in certain identified industries to electronically submit their 300A form on an annual basis;
  • Employers who receive notification from OSHA to electronically submit their 300, 300A and 301 forms to OSHA.

OSHA will then post the data from employer submissions on a publically accessible Web site.  According to the final rule, OSHA does not intend to post any information that could be used to identify individual employees.

Employer Injury Reporting Policies

The final rule requires employers to develop employee injury and illness reporting requirements that met specific criteria.  Specifically, employers must inform employees of the following:

  • Procedures for reporting work-related injuries and illnesses promptly and accurately.  According to the final rule, a procedure is not reasonable if it would deter or discourage employees from reporting injuries or illnesses;
  • Employees have the right to report work-related injuries and illnesses;
  • Employers are prohibited from discharging or in any manner discriminating against employees for reporting work-related injuries or illnesses.

In the proposed rule, OSHA suggested that safety incentive policies and post-accident drug testing could be considered practices that would discourage employees from reporting work-related injuries or illnesses and therefore could be discriminating practices.  In the final rule OSHA explains, “[T]he final rule does prohibit employers from using drug testing (or the threat of drug testing) as a form of adverse action against employees who report injuries or illnesses. To strike the appropriate balance here, drug testing policies should limit post-incident testing to situations in which employee drug use is likely to have contributed to the incident, and for which the drug test can accurately identify impairment caused by drug use.”

Regarding incentive programs, OSHA states, “Employee incentive programs take many forms.  An employer might enter all employees who have not been injured in the previous year in a drawing to win a prize, or a team of employee might be awarded a bonus if no one from the team is injured over some period of time.  Such program might be well-intentioned efforts by employers to encourage their works to use safe practices. However, if the programs are not structured carefully, they have the potential to discourage reporting of work-related injuries and illnesses without improving workplace safety.”  “[T]o the extent incentive programs cause under-reporting, they can result in under-recording of injuries and illnesses, which may lead to employer liability for inaccurate recordkeeping.  The latter concern is what is being addressed by this final rule’s prohibition on employers using incentive programs in a way that impairs accurate recordkeeping.”

Effective Dates

There are two effective dates in the final rule. The most immediate effective date will be August 10, 2016 for the provisions regarding employee injury reporting policies.  Specifically, the requirements to inform employees they have a right to report a work-related injury and the prohibition from discharging or otherwise discriminating against employees for reporting work-related injuries or illnesses.  These provisions will be effective 90 days after publication in the Federal Register.

The requirements relating to the electronic submission of Part 1904 recordkeeping forms become effective January 1, 2017. Establishments with 250 or more employees must submit information from their 2016 form 300A by July 1, 2017. And starting in 2018, these same employers will be required to submit information from all 2017 forms (300A, 300, and 301) by July 1, 2018. Beginning in 2019 and every year thereafter, the information must be submitted by March 2. Establishments with 20 or more but less than 250 employees in designated industries must submit information from their 2016 form 300A by July 1, 2017, and their 2017 form 300A by July 1, 2018. Beginning in 2019 and every year thereafter, the information must be submitted by March 2.

According to OSHA, those states that operate under a state OSHA plan will have to adopt requirements that are substantially similar within six months.  Additional information regarding the final rule can be found on OSHA’s website.  OSHA has provided a specific “resource page” regarding the final rule. Jackson Lewis is still in the process of reviewing the final rule and will provide updates as necessary.

 

 

 

 

Final Electronic Recordkeeping Rule Expected Soon

In November 2013, OSHA published a notice of proposed rulemaking, “Improve Tracking of Workplace Injuries and Illnesses,” to add electronic recordkeeping requirements that would require certain employers to electronically submit to OSHA injury and illness recordkeeping information on a quarterly and/or annual basis. Additionally, the proposed rule would establish a public searchable website where OSHA would make employers’ injury and illness records available to the general public.

In August 2014, OSHA issued a supplemental notice of proposed rulemaking for this rule that included provisions that would prohibit employers from taking adverse action [termination, reduction in pay, reassignment to less desirable position] against employees for reporting injuries and illnesses. After public hearings and public comments were submitted on the proposed and supplemental rule, OSHA finalized the rule and sent the rule to the Office of Management and Budget (OMB) in October 2015 for review.

On April 29, 2016, OMB completed its review of the rule.  The information available from OMB suggests that the final rule will have some changes from the proposed and supplemental rule, but it is unclear what those changes will be.   A final rule is likely to be published in the Federal Register soon.  We will provide updated information when it is available.

Current Inspections Could Result in Citations with Increased Penalties

Under the Bipartisan Budget Act of 2015 OSHA is required to increase civil penalties for the first time since 1990 and a one-time catch-up adjustment will occur in August 2016. Penalties are expected to be increased by roughly 80 percent, meaning a serious citation of $7,000 may now be $12,500 and a $70,000 willful violation may now be $125,000. The precise penalty amount will be known when OSHA publishes this information in the Federal Register on or before July 1, 2016.

OSHA has stated that employers who are inspected prior to the effective date of August 1, 2016 but are issued citations after August 1 will be issued citations under the new penalty structure with higher penalties. And because OSHA has six months from the date of alleged violations to issue citations, employers with current open inspections resulting in citations issued after August 1 will see higher penalties.

Injuries of Intoxicated or Drugged Employees Recordable

In a recent interpretation letter, an employer posed the following scenario and question to OSHA:

As the result of a workplace accident resulting in an injury to an employee that required medical treatment, a post-accident drug and alcohol test was administered. The alcohol test revealed the injured employee was intoxicated. “Does this injury meet the exemption in Section 1904.5(b)(2)(vi), given the worker was self-medicating with alcohol for his non-work related condition of alcoholism?”

Under OSHA’s recordkeeping requirements, section 1904.5(b)(2)(vi) states “You are not required to record injuries and illnesses if the injury or illness is solely the result of personal grooming, self-medication for a non-work-related condition, or is intentionally self-inflicted.”

The employer inquired whether alcohol could be considered self-medication and therefore meets the exemption for work-relatedness. OSHA determined that the exemption did not apply, stating, “The [Office of Occupational Medicine and Nursing] physicians concluded that the intake of alcohol does not treat the disorder of alcoholism. Instead, drinking alcohol is a manifestation of the disorder. Accordingly, the injury described in the scenario above does not meet the exception in Section 1904.5(b)(2)(vi) for self-medication.”

Additionally OSHA noted that it did not adopt an exemption in the final rule for “employees engaged in illegal activities, horseplay, or failure to follow established work rules or procedures” because doing so was inconsistent with the agency’s position on the geographic presumption for work-relatedness. And, “recording such incidents may serve to alert both the employer and employees to workplace safety and health issues.

 

16 Legal Tips: Handling OSHA Citations the Right Way

In its recent publication 16 Legal Tips: Handling OSHA Citations the Right Way, Intelivert asked 16 top legal experts for their tips to safety professionals who may find themselves on the receiving end of an OSHA citation. Three of those experts were Jackson Lewis attorneys – Carla Gunnin in our Atlanta office, as well as Tressi Cordaro and Nickole Winnett in the Washington, DC office.

Tressi Cordaro pointed out that “OSHA is not always right.” Her advice is to check whether the cited standard applies to your particular situation, read through the standard carefully looking for exceptions, checking definitions, and raising any concerns with OSHA during the informal conference. Her closing words of advice: “But don’t just assume the standard applies because OSHA cited it.”

Carla Gunnin cautions clients that OSHA needs to provide proof. Ms. Gunnin says that OSHA is increasingly issuing citations under the General Duty Clause. However, citing under the General Duty Clause increases OSHA’s burden of proof. OSHA must prove that not only was there a recognizable hazard but also that there is a feasible abatement method.

Nickole Winnett’s advice is to “Consider before you settle.” Ms. Winnett warns that however tempting OSHA’s settlement offer of a reduced penalty may be in the short term, it may prove costly in the long term. OSHA may use an organization’s citation history to support issuing Repeat and Wilful classifications and higher penalties in the future.

If you have any questions about “Handling OSHA Citations the Right Way,” or any other workplace safety concern, Tressi Cordaro, Carla Gunnin, Nickole Winnett and the other members of Jackson Lewis’s Workplace Safety & Health team are here to help.

OSHA, Focusing on Meat Processing Industry, Launches Emphasis Programs for Three Midwestern States

The Occupational Safety and Health Administration has launched emphasis programs in three Midwestern states in an effort to reduce injuries and illnesses that government data show have affected 7.5 percent of employees in the meat processing industry there. To read the full article, written by Tressi Cordaro, click here.

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