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.

OSHA Sets 400% Fine Increase for Reporting Rule Violations

Raising the maximum fine 400 percent for failing to timely report a work-related severe injury and increasing the likelihood for on-site inspections of employers who report a serious injury are among changes reflected in new guidance released by the Occupational Safety and Health Administration. To read the full article, written by Carla Gunnin, click here.

OSHA Releases Final Rule on Respirable Crystalline Silica

The Occupational Safety and Health Administration (OSHA) has released a pre-publication copy of its final rule, Occupational Exposure to Respirable Crystalline Silica. The rule will be published in the March 25, 2016, Federal Register and will be effective in 90 days. To read the full article, written by Henry Chajet, click here.

OSHA Reports on Findings from Severe Injury Reporting Program

As of January 1, 2015, employers have been required to report any work-related amputation, in-patient hospitalization, or loss of an eye to OSHA within 24 hours of the incident. Fatalities must be reported within 8 hours.  OSHA hoped that these requirements would have the following two consequences:

  1. The reporting requirements would allow their resources to be more efficiently and effectively used in compliance assistance and enforcement where workers were at greatest risk;
  2. High-hazard employers would become actively involved in identifying and eliminating serious hazards.

A year later, OSHA has published a report, “Year One of OSHA’s Severe Injury Reporting Program: An Impact Evaluation” authored by Dr. Michaels, Assistant Secretary of Labor for Occupational Safety and Health.  As the title indicates, the report evaluates the first year’s findings based on the OSHA’s experience in the field and the data generated by the employer reports. According Dr. Michael’s report, in 2015, employers reported 10,388 severe injuries which included 7,636 in-patient hospitalizations and 2,644 amputations.  These numbers are representative of federal OSHA states only – they do not include statistics for states that administer their own safety and health programs.

The report breaks down the first year’s data in several ways – hospitalization by industry sector, amputation by industry sector, and the 25 industry groups by NAICS code which reported the largest number of injuries. Combined, the manufacturing and construction industries reported 45% of the hospitalizations and 67% of the amputations.  Interestingly, among the top 25 industry groups reporting the largest number of severe injuries, the postal service (ranked 5th) and grocery store workers (ranked 7th) reported more severe injuries than animal slaughtering and processing (ranked 8th) or highway, street, and bridge construction (ranked 12th).  According to OSHA the findings also showed that “more than 6% of the Severe Injury Reports involved a temporary worker” and revealed “recurring patterns of injuries at certain workplaces.”

The report also states that based on other factors (including injury claim numbers for workers’ compensation) OSHA believes these figures represent significant underreporting – “perhaps 50% or more.” This position is consistent with Dr. Michael’s general belief that employers are under recording work-related injuries and illnesses as well.  OSHA attributes the underreporting to two things.  Firstly, based on the fact that the majority of the reports the Agency received were from large employers, it has concluded that many small and mid-sized companies may not be aware of the new reporting requirements.  OSHA is working on outreach strategies to reach these companies.  Secondly, OSHA believes that some “employers are choosing not to report because they perceive the cost of not reporting to be low.”  To discourage this behavior, OSHA has said that it “is more likely to cite for non-reporting” and it has also raised the unadjusted penalty for not reporting a severe injury from $1,000 to as high as $7,000.  However, the penalty can be even more costly if OSHA discovers that an employer intentionally and willfully chose not to make a timely report.

Overall, OSHA has concluded that the rule is meeting the two intended objectives. The Agency believes that most of the hazards resulting in work-related injuries or illnesses can be prevented and “that when employers engage with OSHA after a worker suffers a severe injury – whether or not a workplace inspection is launched – they are more likely to take action to prevent future injuries.”  In approximately two-thirds of the reports made in 2015, OSHA responded by asking the employers to conduct their own internal investigation, propose abatements, and report back to OSHA.  This process, referred to as a Rapid Response Investigation (RRI), conserves OSHA time and resources and according to OSHA seems to be working effectively.

In approximately one-third of the reports and 58% of amputation reports, OSHA did conduct its own on-site inspection. OSHA believes that but for the new reporting requirements, the Agency would have been unaware of the hazards and therefore unable to work with employers to ensure the safety and health of their employees.  The report notes positive impacts as a result of the inspections it conducted: a lot of employers implemented safety measures which exceeded OSHA requirements; other employers shifted their employee incentives away from low injury reporting to rewarding ideas for injury preventative strategies; and other employers either hired safety and health consultants to conduct safety audits or used OSHA’s on-site consultation services.

In the eyes of OSHA, it is their assessment that the severe injury reporting program is successful. However, it “will continue to evaluate the program and make changes to improve its effectiveness.”  The full report can be read here.

OSHA’s Final Silica Rule Imminent

In 2010, OSHA issued a proposed rule reducing the permissible exposure level (PEL) for crystalline silica for general industry and construction.  The proposed rule cut the respirable silica PEL from 100 µg/m3  for an 8-hour time weighted average to 50 µg/m3. After public hearings and public comments were submitted on the proposed rule, OSHA finalized the rule and sent the rule to the Office of Management and Budget (OMB) in December 2015.

On March 21, 2016, OMB completed its review of the rule and a final rule is expected to be published in the Federal Register soon.  Additional information from OSHA is expected today and Jackson Lewis will provide updated information when it is available.

 

 

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