OSHA Still Considering Revising Electronic Recordkeeping Rule

Authored by Ray Perez 

With the December 1, 2017 deadline fast approaching for covered employers to electronically submit injury and illness records to OSHA, the Agency has indicated that it is close to completing its review to the Obama-era Improve Tracking of Workplace Injuries and Illnesses final rule.  In a Status Report filed on October 10, 2017 with U.S. District Court for the Western District of Oklahoma which has stayed litigation over the rule pending further rulemaking, the Department of Justice (“DOJ”) indicated that OSHA continues to develop a Notice of Proposed Rulemaking (“NPRM”) to “reconsider, revise, or remove provisions of the [Rule]” as announced in the July 20, 2017 Office of Information and Regulatory Affairs’ regulatory agenda.

DOJ went on to state that it understands that OSHA has “drafted substantial portions of the NPRM, including draft regulatory text and a summary and explanation of the proposed changes, and that OSHA’s economists have made significant progress on the economic analysis and continue to refine it.  Once the analysis is finalized, the draft NPRM will proceed through the agency clearance process.”

The Status Report gives no indication as to when this process will be completed or when the NPRM will be published.  Many industry groups and the Commerce Department have urged the new administration and OSHA to eliminate provisions under the rule that would make employer injury and illness data publically available online and which would restrict existing employer policies such as safety incentive programs and post-accident drug testing.

Unfortunately, the filing does not reveal what parts of the rule may be subject to revision or removal.  There are some expectations that OSHA will maintain the electronic reporting requirements but will not make the information publically available. OSHA may also eliminate the rule’s anti-retaliation provisions.

We will provide updated information once we know more about any proposed changes to the rule.

OSHA Injury Tracking Application Up & Running

On August 16th we reported that OSHA had suspended user access to its new Injury Tracking Application (“ITA”) that serves as the web portal for the submission of injury and illness information under OSHA’s “Improve Tracking of Workforce Injuries and Illnesses” rule.  The suspension followed a warning by the Department of Homeland Security alerting OSHA to a possible security breach.

The ITA was back up and running within a couple of weeks and an OSHA spokesman reported at the end of August that the National Information Technology Center confirmed that none of the ITA information had been compromised.

For covered employers the deadline for electronic submission of the 2016 300A is December 1, 2017.

OSHA Announces Top Ten Violations

OSHA recently released the top ten violations for fiscal year 2017, which ended September 30.  Generally, this list does not change much from year to year with the top three violations always being fall protection, hazard communication and scaffolding. OSHA noted that not all violations had been added to its reporting system but that the list was not expected to change.

Overall Top Ten Violations for FY 2017 

 

  1. Fall Protection (Construction – 29 CFR 1926.501).  Total of 6,072 violations with frequently violated requirements including failure to provide fall protection for unprotected edges and open sides in residential construction and failure to provide fall protection on low-slope roofs.
  1. Hazard Communication (29 CFR 1910.1200) Total of 4,176 violations with frequently violated requirements for failure to have a written hazard communication program and failure to provide employee access to safety data sheets.
  1. Scaffolding (29 CFR 1926.451) Total of 3,288 violations with the most frequent violations including improper access to surfaces and lack of guardrails.
  1. Respiratory Protection (29 CFR 1910.134) Total of 3,097 violations with the most frequent violations for failure to establish a written respiratory protection program and failure to provide medical evaluations.
  1. Lockout/Tagout (29 CFR 1910.147) Total of 2,877 violations with the most frequent violations for employee training and failure to conduct periodic inspections.
  1. Ladders (Construction – 29 CFR 1926.1053) Total of 2,241 violations with frequent violations including improper use of ladders, damaged ladders, and using the top step.
  1. Powered Industrial Trucks (29 CFR 1910.178) Total of 2,162 violations including employee training and refresher training.
  1. Machine Guarding (29 CFR 1910.212) Total of 1,933 violations with the most frequent for failure to guard points of operation.
  1. Fall Protection—Training (Construction – 29 CFR 1926.503) Total of 1,523 violations with the most frequent for failure to train employees in identifying fall hazards and proper use of fall protection equipment.
  1. Electrical (29 CFR 1910.305) Total of 1,405 violations including temporary wiring in lieu of permanent wiring.

OSHA Announces Enforcement Policy for Construction Silica Standard

In a memorandum issued today from Thomas Galassi, Acting Deputy Assistant Secretary to OSHA Regional Administrators, OSHA has announced how it will handle enforcement of the new Silica Standard for the construction industry, which takes effect on September 23, 2017.

For the first 30 days of enforcement OSHA will not issue citations to those employers who, in good faith, are trying to comply with the requirements of the standard but are unable to reduce exposures below the new permissible exposure limit or are unable to fully comply with Table 1.  Instead, for those employers, OSHA will offer “compliance assistance and outreach” to help employers with “understanding and compliance” of the new standard.  Specifically, “OSHA will pay particular attention to assisting employers in fully and properly implementing the controls in the table.”

If during an OSHA inspection it appears that a particular employer is not making any efforts to comply with the standard, OSHA will conduct air monitoring and possible citations may be issued.

Additionally, the memorandum notes that OSHA will soon be issuing inspection and citation guidance for its compliance officers and that a compliance directive will follow.

 

OSHA Proposes to Extend Crane Operator Certification Requirement

In 2010 OSHA promulgated a final rule regulating cranes and derricks in the construction industry, Cranes and Derricks in Construction, Subpart CC (29 C.F.R. 1926.1400, et al.). Shortly after the final rule was issued OSHA published the Small Entity Compliance Guide on the new standard. Portions of the agency’s guidance created considerable conflict between OSHA and stakeholders involved in the use of cranes, including employers, unions, and firms that offer crane operator training and certification. Specifically, OSHA took the position that an operator is qualified to operator a crane if he is certified for the type and capacity of equipment or for higher-capacity equipment of that type.

In November 2012, the International Union of Operating Engineers (IUOE) petitioned OSHA to reverse its interpretation and to amend the “capacity and type” language in 1926.1427(b)(1)(ii)(B) and 1926.1427(b)(1). Many within the industry believe that crane capacity should not be used as a factor for operator certification. In response to the IUOE’s petition and the concerns of the regulated industry, OSHA held stakeholder meetings in April 2013 to gather additional information. Following those stakeholder meetings, in May 2013 OSHA proposed to extend the compliance date for the crane operator certification and qualification requirements by three years to November 10, 2017.  After a public comment period on the proposed extension, in September 2014, OSHA announced that it was extending the crane operator certification requirements from November 10, 2014 to November 10, 2017, a three year extension. During this three-year period, it was the agency’s intention to develop a new standard that addressed operator qualification requirements including the role of operator certification.

Even if OSHA were to publish a proposed rule on crane operator certification today, the agency would not have enough time to solicit public comment and finalize a new rule by the current November 10, 2017 deadline.  So OSHA is now proposing to further delay the November 10, 2017 deadline by one year to November 10, 2018 to address the stakeholder concerns.

OSHA is accepting public comments until September 29, 2017.

OSHA Schedules Second Public Meeting on Voluntary Protection Programs

The Occupational Safety and Health Administration has scheduled the second of two meetings to “reshape” the Voluntary Protection Programs (VPP) for August 28, 2017. The first meeting was held on July 17, 2017.

OSHA established the VPP on July 2, 1982, to promote cooperation between government, industry, and labor to improve worker safety, health, and protection.To read my full article, click here.

Need OSHA Action on Ammonium Nitrate and Healthcare Workplace Violence, Government Monitor Urges

Focus is needed on two safety and health priorities: healthcare workplace violence and high-risk facilities that handle hazardous substances such as ammonium nitrate, chief of the Government Accountability Office Gene L. Dodaro has urged Labor Secretary Alexander Acosta in a letter. To read my full article, click here.

OSHA Suspends ITA Due to Security Breach

On Monday we blogged about the availability of the new OSHA Injury Tracking Application (“ITA”) that serves as the web portal for the submission of injury and illness information (300 Logs, 301 Forms and 300A Forms) under OSHA’s “Improve Tracking of Workplace Injuries and Illnesses rule (aka Electronic Recordkeeping rule).  Yesterday, OSHA suspended user access to the ITA  after the Department of Homeland Security notified the Department of Labor of a potential compromise of user information. It appears that only one company has been affected by this breach of security and that company has been notified.

OSHA is currently working with the ITA developer to determine the extent of the problem and the potential impact to the portal. Users trying to access the portal will find an alert noting, “due to technical difficulties with the website, some pages are temporarily unavailable.” It is unclear whether this security breach will impact or further delay the compliance date for the submission of employer injury and illness information, which is December 1, 2017.

We will provide updated information once we know more.

 

OSHA Launches Injury Tracking Application

On August 1, 2017, OSHA finally launched its web portal to accept submission of recordkeeping forms pursuant to the requirements in the final rule, “Improve Tracking of Workplace Injuries and Illnesses.”  Under the rule, which was promulgated in May 2016, OSHA originally anticipated having the portal available by February 1, 2017, with submissions due by employers no later than July 1, 2017.  In May, OSHA delayed the launch of the portal until August 1, 2016.  While the web portal is now available, submission of recordkeeping forms is currently not required. OSHA has requested public comments on the proposed submission compliance date of December 1, 2017. All signs point to a December 1, 2017 compliance deadline for employers to submit their recordkeeping forms.

Under the rule, submission for all employers for 2017 is simply the 2016 300A Form.  Beginning in 2018, employers required to maintain injury and illness records with 250 or more employees at an establishment they will be required to submit all recordkeeping forms – 300 Log, 301 Forms and 300A Form.  For employers required to maintain injury and illness records with less than 250 but 20 or more employees in certain industries will be required to submit only they 300A Form.

The portal is called Injury Tracking Application or ITA and will accept three forms of data submission. Employers can manually enter the information into the online form, upload a CSV file or transfer the data electronically using an application programming interface (API).

OSHA has provided employers with “job aids” to assist in the development of a user account, password and uploading the data and has provided additional information in the form of FAQs. We encourage covered employers to take the time to become familiar with the portal, establishing an account and to carefully review their injury and illness recordkeeping forms prior to submission.

OSHA Releases New Online Whistleblower Complaint Form for Workers

The Occupational Safety and Health Administration has released a revised online whistleblower complaint form.

In an announcement, Deputy Assistant Secretary of Labor for Occupational Safety and Health Loren Sweatt said, “Workers who report unsafe conditions and wrongdoing have a range of legal protections from retaliation. The revised online complaint form works to ensure whistleblowers file their complaints with the appropriate federal agency for prompt action.” To read my full article, click here.

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