Electronic Recordkeeping Rule – OSHA Delays Effective Date for Anti-Retaliation Provision

Yesterday, OSHA announced that it would delay the effective date of one portion of the final rule, “Improve Tracking of Workplace Injuries and Illnesses” also known as the Electronic Recordkeeping rule. Specifically, OSHA has delayed enforcement of Section 1904.35, which requires employers to inform employees of the right to report injuries and illnesses free from retaliation and to establish reasonable procedures for employees to report work-related injuries and illnesses.  Employers are already required to have reporting procedures, but the final rule clarified that to be reasonable, such reporting procedures must not discourage employees from reporting injuries or illnesses.

Section 1910.35 became effective August 10, 2016, however,  OSHA has delayed enforcement until November 1, 2016.  According to the agency’s news release the delayed effective date will allow OSHA “to conduct additional outreach and provide educational materials and guidance for employers.”


OSHA Announces New Maximum Penalty Amounts

Under the Bipartisan Budget Act of 2015 OSHA was required to adjust civil penalties for violations of safety and health standards on or before July 1, 2016.  The Bipartisan Budget Act allowed OSHA  a one time “catch-up” to adjust for inflation since 1990. On July 1, 2016, OSHA announced the new maximum civil penalties which will take effect August 1, 2016.    According to OSHA, the new maximum penalty structure for any citations issued after August 1, 2016 will be as follows:

Type of Violation                   Current Maximum Penalty New Maximum Penalty
Posting Requirements


$7,000 per violation $12,471 per violation
Failure to Abate


$7,000 per day beyond the abatement date $12,471 per day beyond the abatement date
Willful or Repeated $70,000 per violation $124,709 per violation

On an annual basis the maximum penalties will be adjusted for inflation based on the Consumer Price Index.  Additionally, state plans (those states that operate their own occupational safety and health program) will be required to be raise their maximum penalty amounts to align with Federal OSHA.

New OSHA Whistleblower ‘Shaming’ Program Draws Fire

The Occupational Safety and Health Administration has launched a pilot program in the Midwest region to shame employers who allegedly violate their employees’ whistleblower rights egregiously, but a critic contends the initiative may violate a company’s due process rights and unfairly ruin its business reputation. To read the full article, written by Tressi Cordaro, click here.

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: