A Whole New Workplace Exam: MSHA Proposes Major Changes

At a stakeholder meeting today at its Arlington, VA headquarters, MSHA announced dramatic new changes to requirements that metal/non-metal mine operators conduct workplace examinations each shift. The official publication of the proposed rule in the Federal Register will launch a 90-day comment period that will include four public hearings around the country. Mine operators are sure to weigh in with concerns over the potential risks, challenges, and costs created by the rule. To read the full article, written by Avi Meyerstein, click here.

High Heat Alert in California

On June 1, 2016, The California Occupational Safety and Health Division issued a high heat advisory, warning employers to protect their outdoor workers from heat illness as temperatures hit extreme highs this week.  The heat advisory stated that there is a prediction that temperatures will be well over 100 degrees in many locations, including the greater San Diego area and the Inland Empire east of Los Angeles and even in some cities that are normally cooler in the San Francisco Bay Area such as Concord and Walnut Creek.  Last year the state adopted a new Heat Illness Prevention regulation changing the requirements for potable water, shade, cool-down periods, high-heat procedures, emergency preparedness, acclimatization, training, and heat illness prevention plans.  Employers should re-train their employees for compliance.  The many requirements of the heat regulation have created a large wave of serious and serious accident-related citations.

Potable Water Requirements

Employers must provide employees with access to potable drinking water that is clean and maintained through individual dispensers, faucets, or drinking fountains.  The employer must either provide sufficient amounts of water at the beginning of the shift or continuously replenish the employee’s water supply, especially if the employees work off-site.  The employer must provide each employee with a minimum of one quart of water per hour for the entire shift.

Water should be fresh, pure, suitably cool, and provided free of charge to employees and should be located as close as practicable to the areas where employees are working, unless the employer can demonstrate infeasibility.

Shade Requirements

Employers must provide shade when the temperature exceeds 80 degrees Fahrenheit and the shaded area must be large enough to accommodate all employees on recovery or rest periods.  Further, employers must provide enough shade to accommodate all employees taking on-site meal breaks.  In addition, the shaded area must be located as close as practicable to the areas in which employees are working.

Preventive Cool-Down Rest Periods

The heat illness regulation requires employers to allow and encourage employees to take a minimum of five minutes for a cool-down rest period if they feel they are in danger of overheating.  Employers must also monitor and ask an employee taking a cool-down rest period whether he or she is experiencing symptoms of heat illness.  Employers are expected to encourage employees on such breaks to remain in the shade, as needed.  Employers are prohibited from ordering employees to work until signs or symptoms of heat illness have abated.

High-Heat Procedures

This week California is experiencing high heat conditions.  Employers must implement high-heat procedures when the temperature is at least 95 degrees Fahrenheit.  Employers must ensure that there is effective communication between supervisors and employees and observe employees for alertness and signs or symptoms of heat illness.

Employers must institute one of the following procedures: (1) a one-supervisor-to-20-or-fewer-employees ratio, (2) a mandatory buddy system, (3) regular communication through electronic device routine with each employee, or (4) another effective means of communication.  Employers also are obligated to designate at least one employee at each worksite as authorized individuals for emergency medical services.  If no designee is on shift, employers must instruct other employees to call for required emergency services.

Employers should always conduct pre-shift meetings during high heat conditions.  The shift meetings should review high heat procedures, encourage employees to drink plenty of water, and remind employees of their right to take a cool-down rest break when needed.

Agricultural employers must also provide employees with 10-minute cool-down rest periods every 2 hours.

Emergency Preparedness Requirements

High-heat emergency response preparedness requirements must include: (1) an effective communication with employees by voice, observation, or electronic means; (2) an effective response with first aid measures; and (3) procedures for contacting emergency responders to help stricken workers.


Employers must assign supervisors to observe and monitor employees closely during a heat wave.  A “heat wave” is “any day in which the predicted high temperature for the day will be at least 80 degrees Fahrenheit and at least ten degrees Fahrenheit higher than the average high daily temperature in the preceding five days.”  Employers should monitor employees closely this week because we are in the first 14 days of high-heat conditions.


Remember to train your employees on all heat policies and remind them about the signs of heat illness.  Also remember to re-train employees about: water, shade, cool-down rests, and access to first aid; their right to take breaks without fear of retaliation; first aid and emergency response procedures; and concepts and methods of acclimatization.

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:






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:


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.