With the election right around the corner, many employers are starting to speculate about what OSHA initiatives might be coming down the pike in 2013. Click here for an interesting article examining possible initiatives for 2013 for the construction industry.
Vacating citations issued by OSHA for violations of the Occupational Safety and Health Act’s recordkeeping requirements, the U.S. Court of Appeals for the District of Columbia Circuit has held that the citations were untimely and barred by the Act’s six-month statute of limitations. Click here for a full discussion of the decision.
Employers covered by OSHA's recordkeeping rule must prepare and post the OSHA Form 300A, “Summary of Work-Related Injuries and Illnesses,” by February 1 and keep the form posted until April 30. The form must be posted at each establishment covered, in a conspicuous place where notices to employees are customarily posted.
After the form is completed, but before posting, a company executive must certify that “he or she has examined the OSHA 300 Log and that he or she reasonably believes, based on his or her knowledge of the process by which the information was recorded, that the annual summary is correct and complete.”
Under OSHA’s rule, a company executive can be one of the following: (1) an owner of the company (only if the company is a sole proprietorship or partnership); (2) an officer of the corporation; (3) the highest ranking company official working at the establishment; or (4) the immediate supervisor of the highest ranking company official working at the establishment.
OSHA can cite an employer who fails to post the OSHA Form 300A as required. Employers should take steps now to ensure they are fully compliant.
Following its recent interpretation that "therapeutic exercise" constitutes medical treatment for OSHA recordability purposes, OSHA has now stated that an exercise regime recommended by a Certified Athletic Trainer for an employee who exhibits any signs or symptoms of a work-related injury involves medical treatment and is a recordable case. OSHA made this interpretation in a letter recently posted on its website.
In the same letter, OSHA also provided guidance on whether specific types of exercise constitutes medical treatment. OSHA states that if a Certified Athletic Trainer "utilizes stretching" to relieve symptoms of a work-related injury or illness, the "stretching" constitutes medical treatment. OSHA also states that a written home exercise program provided by a Certified Athletic Trainer for signs or symptoms of a work-related injury or illness constitutes medical treatment for recordkeeping purposes.
OSHA's interpretation is particularly important for musculoskeletal disorders (MSDs), as MSDs are often managed, in part, through exercise regimes. OSHA does note in the letter that exercise given as a purely precautionary measure (i.e., before the onsite of signs or symptoms) would not qualify for recordability. However, if an employee experiences any signs or symptoms of a work-related injury or illness -- even very early signs or symptoms -- exercise given to manage those signs or symptoms would constitute medical treatment for recordability purposes.
Employers should take note of this new interpretation and adjust their recordkeeping practices accordingly.
In a newly released letter of interpretation, OSHA has concluded that "therapeutic exercise" recommended by a health care professional in response to minor work-related "pain" constitutes medical treatment under OSHA's recordkeeping rule.
OSHA was asked whether exercises recommended for a short period of time by an on-site health care professional when an employee is experiencing minor pain would qualify as medical treatment and be recordable, assuming the pain was work-related. OSHA's response was a definitive "yes." "Therapeutic exercise" is not included on the list of first aid treatments. Furthermore, the duration of the exercises makes no difference in an employer's recordability determination:
The fact that physical therapy treatment, including exercise, is normally provided over an extended period of time and is administered by licensed personnel with advanced training was taken into account during the rulemaking process to determine the composition of the first aid list. However, in implementation of the final requirements, the number of treatments rendered is not a factor in distinguishing between medical treatment and first aid.
OSHA also stated that this situation would not qualify for the exception from recordability for "minor musculoskeletal discomfort" (where the employer assigns a work restriction for the purpose of preventing a more serious condition from developing). OSHA emphasized that this exception is "very narrow in scope" and that once any type of medical treatment is offered -- including therapeutic exercise -- the case is recordable. "Work-related minor musculoskeletal discomfort treated with therapeutic exercise constitutes a recordable case."
Employers should take note of this new letter and ensure that their recordkeeping practices are aligned with OSHA's interpretation.
OSHA has proposed changing the industries that would be generally exempt from maintaining regular workplace injury and illness records. Employers in exempt industries are not required to maintain OSHA 300 Logs, complete OSHA 301 incident report forms, or complete the OSHA 300A annual summary forms.
OSHA’s proposed rule also would require employers to report workplace amputations to the Agency within 24 hours, as well as all in-patient hospitalizations within 8 hours. Existing recordkeeping rule (Part 1904) requires employers to report in-patient hospitalizations of 3 or more employees to OSHA within 8 hours. Any workplace fatality would continue to be reportable, as well.
Partially Exempt Industries
OSHA’s recordkeeping rule excludes certain employers in relatively low hazard industries from the Agency’s basic recordkeeping requirements. The current exemption list is industry-specific and based on the now-outdated 1987 Standard Industrial Classification (SIC) coding system. OSHA’s proposed rule will re-categorize the exempt industries based on the North American Industrial Classification System (NAICS), which is the system used by federal agencies for statistical research purposes. The proposal also will remove some industries from the list based on new injury and illness data compiled by the Bureau of Labor Statistics.
The proposed change is significant. Some employers who have for years been regularly exempt from maintaining OSHA 300 Logs will now be required to keep them. Recordkeepers will need to be trained on identifying a work-related injury and illness and recording properly such injuries and illnesses that meet OSHA’s severity criteria. Conversely, some employers that have been required to keep records will now be exempt from this obligation.
Employers should check the following lists to determine where they fit within OSHA’s proposed rule:
Industries that Include Establishments to be Newly Required to Keep Records
3118 Bakeries and Tortilla Manufacturing
4411 Automobile Dealers
4413 Automotive Parts, Accessories, and Tire Stores
4441 Building Material and Supplies Dealers
4452 Specialty Food Stores
4453 Beer, Wine, and Liquor Stores
4539 Other Miscellaneous Store Retailers
4543 Direct Selling Establishments
5313 Activities Related to Real Estate
5322 Consumer Goods Rental
5324 Commercial and Industrial Machinery and Equipment Rental and Leasing
5419 Other Professional, Scientific, and Technical Services
5612 Facilities Support Services
5617 Services to Buildings and Dwellings
5619 Other Support Services
6219 Other Ambulatory Health Care Services
6241 Individual and Family Services
6242 Community Food and Housing, and Emergency and Other Relief Services
7111 Performing Arts Companies
7113 Promoters of Performing Arts, Sports, and Similar Events
7121 Museums, Historical Sites, and Similar Institutions
7139 Other Amusement and Recreation Industries
7223 Special Food Services
8129 Other Personal Services
Industries that Include Establishments to be Newly Partially Exempt from Keeping Records
4412 Other Motor Vehicle Dealers 4431 Electronics and Appliance Stores 4461 Health and Personal Care Stores 4471 Gasoline Stations 4511 Sporting Goods, Hobby, and Musical Instrument Stores 4532 Office Supplies, Stationery, and Gift Stores 4812 Nonscheduled Air Transportation 4861 Pipeline Transportation of Crude Oil 4862 Pipeline Transportation of Natural Gas 4869 Other Pipeline Transportation 4879 Scenic and Sightseeing Transportation, Other 4885 Freight Transportation Arrangement 5111 Newspaper, Periodical, Book, and Directory Publishers 5122 Sound Recording Industries 5151 Radio and Television Broadcasting 5172 Wireless Telecommunications Carriers (except Satellite) 5173 Telecommunications Resellers 5179 Other Telecommunications 5181 Internet Service Providers and Web Search Portals 5191 Other Information Services 5221 Depository Credit Intermediation 5239 Other Financial Investment Activities 5241 Insurance Carriers 5259 Other Investment Pools and Funds 5413 Architectural, Engineering, and Related Services 5416 Management, Scientific, and Technical Consulting Services 5418 Advertising and Related Services 5511 Management of Companies and Enterprises 5614 Business Support Services 5615 Travel Arrangement and Reservation Services 5616 Investigation and Security Services 6116 Other Schools and Instruction 7213 Rooming and Boarding Houses 8112 Electronic and Precision Equipment Repair and Maintenance 8114 Personal and Household Goods Repair and Maintenance 8122 Death Care Services 8134 Civic and Social Organizations 8139 Business, Professional, Labor, Political, and Similar Organizations Reporting In-Patient Hospitalizations and Amputations
Under OSHA’s existing recordkeeping rule, employers must report to OSHA within 8 hours all work-related fatalities and in-patient hospitalizations of 3 or more employees. OSHA’s proposal would broaden this reporting requirement to include work-related amputations and any work-related in-patient hospitalization of an employee. The former would be required to be reported within 24 hours of the occurrence of the incident and the latter would need to be reported within 8 hours.
With this proposal, OSHA is following the actions of many states that have adopted more stringent reporting requirements for amputations and in-patient hospitalizations.
Employers have until September 20, 2011, to file written comments on the proposal and are encouraged to participate in the rulemaking process.
In a much anticipated decision, the Occupational Safety and Health Review Commission (Commission) has ruled that OSHA can enforce its requirement for employers to record work-related injuries and illnesses on the OSHA 300 Log even when the employer's duty to record the injuries and illnesses occurred more than six months before the issuance of the citation. The employer in the case had argued that the six month statute of limitations in the Occupational Safety and Health Act for OSHA to enforce violations of the Act prohibited OSHA from enforcing recordkeeping violations that occurred beyond that six month period. The Commission disagreed, however, and by doing so has reiterated for employers the need to continually review their recordkeeping logs to ensure the entries are accurate.
Under OSHA's recordkeeping rule, employers are required to enter a recordable injury on the OSHA 300 Log within seven days of the occurrence of the injury. Employers must also retain their logs for five years and under OSHA's rule, there is an obligation for employers to go back and update entries should the circumstances surrounding them change. In an earlier decision, Johnson Controls, Inc., the Review Commission had ruled that OSHA could cite employers for inaccurate entries until the entries were corrected or until the end of the five year retention period, whichever is longer. The employer in the case at issue argued that Johnson Controls should be overturned for several reasons, including the Supreme Court's decision in Ledbetter v. Goodyear Tire & Rubber Co., Inc., 550 U.S. 618 (2007), which had held that an employee's discrimination claim under Title VII of the Civil Rights Act of 1964 was time-barred. The Review Commission rejected the employer's arguments, however, and held that under OSHA's recordkeeping rule, an inaccurate entry on the OSHA 300 Log constitutes a continuing violation of the rule throughout the entire five year retention period.
For employers, the decision reiterates the need to integrate into their recordkeeping procedures a mechanism to ensure they go back and continually evaluate the accuracy of entries -- during the entire retention period. It is not enough to record an injury within seven days and then "forget" about it. OSHA expects employers to be diligent in updating recordkeeping entries for accuracy and may cite employers who are not.
OSHA announced today that it will be holding a series of three teleconferences, in partnership with the Small Business Administration's Office of Advocacy, on OSHA's proposed musculoskeletal disorder (MSD) column rule. The teleconferences are designed to provide small businesses the opportunity to weigh-in on "their experiences in recording work-related MSDs and how they believe the proposed rule would impact them."
The rule, originally proposed last year, would have required employers to “check a box” in a separate column on the OSHA 300 log – an “MSD” column – for injuries and illnesses that fit within the Agency’s proposed definition. OSHA also proposed to remove existing language from its recordkeeping compliance directive that “minor musculoskeletal discomfort” is not recordable as a restricted work case “if a health care professional determines that the employee is fully able to perform all of his or her routine job functions, and the employer assigns a work restriction for the purpose of preventing a more serious injury.”
OSHA's proposal had been stuck at the Office of Management and Budget (OMB) for several months, before OSHA took the unique step of temporarily withdrawing the proposal from OMB review and agreeing to additional stakeholder outreach.
The three teleconferences will be held on April 11 at 1:30 p.m. EDT, April 12 at 9:00 a.m. EDT, and April 12 at 1:30 EDT. Interested businesses should contact OSHA by April 4 if they wish to participate in the teleconferences.
The Department of Labor has just announced that OSHA is temporarily withdrawing from review by the Office of Management and Budget (OMB) its proposed rule to restore a column for musculoskeletal disorders (MSDs) on employer injury and illness logs.
The rule, originally proposed last year, would have required employers to “check a box” in a separate column on the OSHA 300 log – an “MSD” column – for injuries and illnesses that fit within the Agency’s proposed definition. OSHA also proposed to remove existing language from its recordkeeping compliance directive that “minor musculoskeletal discomfort” is not recordable as a restricted work case “if a health care professional determines that the employee is fully able to perform all of his or her routine job functions, and the employer assigns a work restriction for the purpose of preventing a more serious injury.”
OSHA's proposal had been stuck at OMB for several months, causing many stakeholders to question when or if a final rule would be issued. In a press release announcing the withdrawal, OSHA cites the need to seek greater input from small businesses on the impact of the proposal. OSHA "will do so through outreach in partnership with the U.S. Small Business Administration's Office of Advocacy."
It's that time of year again! Employers covered by OSHA's recordkeeping rule must prepare and post the OSHA Form 300A "Summary of Work-Related Injuries and Illnesses" by February 1 and keep the form posted until April 30. The form must be posted at each establishment covered, in a conspicuous place where notices to employees are customarily posted.
After the form is completed, but before posting, a company executive must also certify that "he or she has examined the OSHA 300 Log and that he or she reasonably believes, based on his or her knoweldge of the process by which the information was recorded, that the annual summary is correct and complete."
Under OSHA's rule, a company executive can be one of the following:
This obligation is important and employers can be cited for failure to post. Employers should take steps now to make sure they are fully compliant.
In a surprise and rare move, the Office of Management and Budget (OMB) has extended its review of OSHA's Occupational Injury Recording and Reporting Requirements Rule -- Musculoskeletal Disorders (MSD) Column. The rule, originally proposed this year, would require employers to “check a box” in a separate column on the OSHA 300 log – an “MSD” column – for injuries and illnesses that fit within the Agency’s proposed definition. OSHA also proposed to remove existing language from its recordkeeping compliance directive that “minor musculoskeletal discomfort” is not recordable as a restricted work case “if a health care professional determines that the employee is fully able to perform all of his or her routine job functions, and the employer assigns a work restriction for the purpose of preventing a more serious injury.”
OMB received OSHA's final rule to review on July 14, 2010. Many stakeholders expected a quick review by OMB of the rule, followed by immediate publication in the Federal Register. In order for the rule to go into effect on January 1, 2011, OSHA needs to provide the states adequate time to incorporate the new rule into their state plan programs. Thus, many anticipated publication as early as this summer.
OMB, however, is clearly taking a hard look at OSHA's rule. OMB rarely extends its reviews under Executive Order 12866 and this signals that OMB has issues with the rule, or its underlying economic analysis, that it has yet to resolve with OSHA.
We will continue to keep you informed of developments wth the rule and other OSHA recordkeeping initiatives.
On Wednesday, May 12, at 3:00 pm ET, OSHA Assistant Secretary David Michaels will lead a special free webcast related to the issue of safety incentive programs. Titled "A Conversation with Assistant Secretary for OSHA Dr. David Michaels: What to do About Safety Incentives," the American Society of Safety Engineers (ASSE) event will discuss "the difference between appropriate and inappropriate safety incentives in the workplace." Click here to learn more about the webcast.
The issue of safety incentive programs and their effect on the reporting of injuries and illnesses has been widely discussed within safety and health circles over the last year, as a result of the focus on these programs within OSHA's Recordkeeping National Emphasis Program (NEP). Sample employee questionnaires included in the recently renewed NEP ask the following questions about incentive programs:
OSHA follows these with questions asking employees whether these types of programs encourage, discourage, or have no effect on the reporting of injuries and illnesses.
Safety incentive programs are ubiquitous and it is important for OSHA to provide guidance to employers about the programs that it views as having a negative effect on the reporting of injuries and illnesses. This webcast is an excellent first start in that process and all employers are encouraged to listen in.
OSHA has just announced that it is extending by 15 days the public comment period for its proposal to add a separate column on the OSHA 300 log for employers to record work-related musculoskeletal disorders (MSDs). Those wishing to comment on the proposed rule must now do so by March 30, 2010. Four separate stakeholders had requested an extension of the comment period.
Under the proposed rule, employers would be required to “check the box” in a separate column on the OSHA 300 log – an “MSD” column – for injuries and illnesses that fit within the agency’s definition. For purposes of the proposal, the agency defines MSDs as:
[D]isorders of the muscles, nerves, tendons, ligaments, joints, cartilage and spinal discs. MSDs DO NOT include disorders caused by slips, trips, falls, motor vehicle accidents, or other similar accidents. Examples of MSDs include: Carpal tunnel syndrome, Rotator Cuff syndrome, De Quervain’s disease, Trigger finger, Tarsal tunnel syndrome, Sciatica, Epicondylitis, Tendinitis, Raynaud’s phenomenon, Carpet layers knee, Herniated spinal disc, and Low back pain.
OSHA also is proposing to remove existing language from its recordkeeping compliance directive that “minor musculoskeletal discomfort” is not recordable as a restricted work case “if a health care professional determines that the employee is fully able to perform all of his or her routine job functions, and the employer assigns a work restriction for the purpose of preventing a more serious injury.” OSHA is concerned that this language creates confusion among employers about recording MSDs. OSHA’s proposal attempts to clarify that employers must record abnormal conditions resulting in minor musculoskeletal discomfort, regardless of whether the conditions include objective signs of an injury or illness – so long as all of the other criteria for recording are met.
This is an important rulemaking and all stakeholders are encouraged to participate in the rulemaking process.
In a move sure to be viewed by some as a prelude to a new ergonomics rulemaking, OSHA has proposed adding a separate column on the OSHA 300 log for employers to record work-related musculoskeletal disorders (MSDs). (The initial 2001 recordkeeping final rule had included an MSD column, but OSHA later deleted that column before the provision ever became effective.) The rule also proposes the same definition of “MSDs” that OSHA had included in the initial 2001 final rule.
This is an important and fast-moving rulemaking. Interested stakeholders are encouraged to review the proposal thoroughly and provide comments to the agency. The comment period ends on March 15, 2010; the agency is holding a public meeting on the proposal on March 9, 2010.
Under the proposed rule, employers would be required to “check the box” in a separate column on the OSHA 300 log – an “MSD” column – for injuries and illnesses that fit within the agency’s definition. For purposes of the proposal, the agency defines MSDs as:
[D]isorders of the muscles, nerves, tendons, ligaments, joints, cartilage and spinal discs. MSDs DO NOT include disorders caused by slips, trips, falls, motor vehicle accidents, or other similar accidents. Examples of MSDs include: Carpal tunnel syndrome, Rotator Cuff syndrome, De Quervain’s disease, Trigger finger, Tarsal tunnel syndrome, Sciatica, Epicondylitis, Tendinitis, Raynaud’s phenomenon, Carpet layers knee, Herniated spinal disc, and Low back pain.
OSHA also is proposing to remove existing language from its recordkeeping compliance directive that “minor musculoskeletal discomfort” is not recordable as a restricted work case “if a health care professional determines that the employee is fully able to perform all of his or her routine job functions, and the employer assigns a work restriction for the purpose of preventing a more serious injury.” OSHA is concerned that this language creates confusion among employers about recording MSDs. OSHA’s proposal attempts to clarify that employers must record abnormal conditions resulting in minor musculoskeletal discomfort, regardless of whether the conditions include objective signs of an injury or illness – so long as all of the other criteria for recording are met.
OSHA describes this proposed rule as a non-significant regulatory action involving only two small costs for employers. OSHA believes that:
1. employers – and specifically a human resources specialist – will be required to spend 5 minutes familiarizing themselves with the rule; and
2. employers will need to spend one additional minute than they currently spend in analyzing an injury or illness to determine whether it should be classified as an “MSD” and put into the correct column on the new recordkeeping forms.
OSHA’s action takes the agency back a decade to the end of the Clinton Administration, when OSHA completed its revised recordkeeping rule with a separate MSD column. Of course, many stakeholders will ask if this move signals a return to the other Clinton Administration rulemaking on MSDs: ergonomics. That rule was rescinded by Congress and President Bush under the Congressional Review Act. OSHA’s leadership has insisted that this rulemaking is totally separate from any ergonomics initiative and should not be interpreted as a first step to a new ergonomics rule. However matters may develop on ergonomics, this rulemaking is important in its own right as it affects – by OSHA’s own count – approximately 1.5 million workplaces around the country.
In 2009, OSHA emerged from the regulatory and enforcement shell that had shrouded it during the eight years of the Bush Administration. Once confirmed, Secretary of Labor Hilda Solis announced that a “new Sheriff” was in town, who would refocus the Department of Labor – including OSHA – on tough enforcement and aggressive rulemaking. In both areas, OSHA delivered on Secretary Solis’s promise.
OSHA Increases Enforcement
Many critics of OSHA during the Bush Administration focused on the seeming “emphasis” on cooperative programs and compliance assistance, at the expense of strong enforcement. In response, the Department of Labor announced in 2009 the hiring of hundreds of additional compliance officers (CSHOs) to refocus the Agency on what many believe is its core mission – enforcing occupational safety and health standards. It also initiated or revamped several new National Emphasis Programs (NEPs) to further focus CSHOs on certain safety and health issues and hazards:
Chemical Facilities National Emphasis Program. OSHA initiated a new NEP to focus enforcement resources on process safety management (PSM) hazards in chemical facilities across the country. The NEP, effective July 27, 2009, is billed as a “new approach for inspecting PSM covered facilities” and “allows for a greater number of inspections by better allocation of OSHA’s resources.” In its instructions to compliance officers regarding the scope of inspections, OSHA emphasizes implementation of the PSM standard over documentation. Paper programs are not enough and OSHA will make sure that employers are fully implementing their PSM programs.
Recordkeeping National Emphasis Program. In the fall of 2009, OSHA launched its long-awaited Recordkeeping NEP. The NEP subjects employers in certain industries to comprehensive injury and illness records reviews. The purpose of the NEP is to ascertain whether, and to what extent, employers are under-recording injuries and illnesses at the worksite. OSHA cites several recent studies in the NEP asserting under-recording by employers on OSHA 300 logs. The NEP is designed to “identify and correct under-recorded and incorrectly recorded cases.” Employers subjected to an NEP inspection will face what are likely to be the most comprehensive inspections in the history of the Agency, with detailed records reviews, interviews of numerous employees, and an analysis of employer safety incentive programs and the effect of these programs on the reporting of injuries and illnesses.
Facilities that Manufacture Food Flavorings Containing Diacetyl National Emphasis Program. After focusing for years on the hazards of occupational exposure to diacetyl in microwave popcorn production, OSHA finally shifted its focus with respect to diacetyl to employers who manufacture food flavorings containing diacetyl. OSHA cites a Centers for Disease Control (CDC) study finding seven cases of bronchiolitis obliterans – a lung disease associated with exposure to diacetyl – in employees working in facilities where flavorings are manufactured. As part of the NEP, OSHA identifies eighty three facilities for inspection and provides detailed guidance for compliance officers to determine the extent to which these facilities are in overall compliance with their obligations.
Perhaps the most eagerly anticipated – and discussed – enforcement initiative was not an NEP at all, but was related to OSHA enforcement procedures for high to very high occupational exposure to the 2009 H1N1 virus. H1N1 captivated the world this past year, and OSHA spent significant resources addressing the occupational safety and health side of the issue. In the spring and summer of 2009, OSHA responded to the H1N1 outbreak by reissuing and repackaging guidance documents on pandemic influenza that had been previously developed. In November, however, OSHA went further and announced inspection procedures for certain high-hazard H1N1 workplaces, including hospitals, emergency medical centers, doctors’ and dental offices and clinics.
A More Active Regulatory Agenda
In 2009, OSHA also set a course for more activity in the rulemaking arena. As with enforcement, many stakeholders were critical of the Bush Administration’s perceived lack of investment in OSHA’s regulatory agenda. The two most significant regulatory accomplishments during the Bush Administration were the final Hexavalent Chromium rule and the final Employer Payment for PPE rule. Many stakeholders, however, argued that even these accomplishments were essentially forced on the Agency by the federal courts. Whether this is true or not, the first year of the Obama Administration saw the announcement of several new regulatory initiatives and what is even more stunning is that these initiatives were announced without a permanent political head of the Agency.
In 2009, OSHA announced new rulemakings for combustible dust hazards and airborne infectious diseases. OSHA also announced that it would revisit in a new rulemaking the definition of work-related musculoskeletal disorders (WMSDs) and how WMSDs should be recorded on OSHA 300 logs. This year OSHA also published its proposed rule to update its hazard communication standard. The hazard communication proposal is one of the most significant OSHA rulemakings in over a decade. OSHA is proposing to revise its hazard communication standard to align it with the United Nations’ Globally Harmonized System of Classification and Labeling of Chemicals (GHS). If finalized, the rule would affect over 5 million business establishments across the country and potentially over 120 million employees. Over 40 million employees would need to be trained on hazard communication under the proposal. OSHA estimates the annualized compliance costs will be almost $100 million for employers. Annualized benefits are estimated to be approximately $850 million.
Finally, in 2009 OSHA made significant progress on its Cranes and Derricks in Construction proposed rule. OSHA’s proposal was over five years in the making. It was developed by the Agency through negotiated rulemaking, whereby representatives of employers and organized labor work together with OSHA to develop a draft rule. Consensus was reached by the negotiated rulemaking committee in 2004. OSHA held public hearings on the proposed rule in 2009 and Agency staff have been busy reviewing comments received with the goal of issuing a final rule in 2010.
All of this in just over 11 months. And yet, this is likely just the beginning for OSHA as 2010 is expected to bring greater enforcement and regulation.
(More to come on what to expect in 2010 in the next blog post.)
Jackson Lewis and SmartPros Ltd. are pleased to announce the availability of two OSHA recordkeeping courses. The first is Course 2215, OSHA’s Record-Keeping NEP: What It Is and What You Need to Do to Prepare, which explains OSHA’s Recordkeeping NEP in detail. The second is Course 2210, The OSHA Record-Keeping "Great Eight," which goes through eight key principles for OSHA recordkeeping compliance.
In addition, click here to view a recent interview on occupational safety and health issues prepared and produced by the Financial Management Network (FMN). The interview covers H1N1, hazard communication, safety and health management systems, OSHA's Recordkeeping NEP, and other hot topics.
The Government Accountability Office (GAO) has released an analysis of OSHA's efforts to ensure that work-related injuries and illnesses are properly recorded by employers. Members of Congress had requested that the GAO determine (1) whether DOL verifies that employers are accurately recording workers' injuries and illnesses and, if so, the adequacy of these efforts, and (2) what factors may affect the accuracy of employers' injury and illness records. The GAO study is another piece of the "under-recording puzzle" that is the focus of great attention by OSHA.
The GAO concludes that there are several deficiencies in OSHA's recordkeeping audit verification program in terms of the ability of the audits to determine if employers are accurately recording injuries and illnesses that occur at the worksite:
The GAO also identifies disincentives to workers reporting injuries and illnesses, including fear of job loss or other disciplinary action and fear of jeopardizing rewards based on having low injury and illness rates. The GAO also surveys U.S. health practitioners and concludes that over a third of them have been subjected to pressure from employers or workers to provide insufficient medical treatment to avoid the need to record injuries or illnesses.
In response to its findings, the GAO makes four recommendations to OSHA:
OSHA agreed with all the recommendations. It stated that it would require inspectors to interview employees during records audits and develop policies to conduct audits in a timely fashion. It also stated that it would pursue rulemaking to update the industry coverage of the recordkeeping rule from SIC codes to NAICS codes. Finally, it committed to supplement its current outreach efforts on recordkeeping compliance.
Of course, OSHA has also implemented its Recordkeeping NEP, which will focus OSHA enforcement resources on investigating the extent to which employers are under-recording injuries and illnesses.
Employers must take steps now to ensure that they have been, and are, accurately recording injuries and illnesses that occur at work.
OSHA has launched its long-awaited Recordkeeping National Emphasis Program (NEP). Effective September 30, the NEP will subject employers in certain industries to comprehensive injury and illness records reviews. Employers in the targeted industries should take time now to review their recordkeeping logs and practices to prepare for an NEP inspection.
Here is a special report on the NEP, including a description of its scope, the conduct of inspections, and the treatment of musculoskeletal disorders under the program.
OSHA has released its much anticipated recordkeeping National Emphasis Program (NEP). It became effective September 30. Click here to see the NEP.
We will be reviewing the document carefully and pass along to you the key aspects of the program.
In a speech recently before the Small Business Administration’s safety and health forum in Washington, DC, Richard E. Fairfax, OSHA’s Director of Enforcement and Construction Programs, provided an update on the agency’s key enforcement initiatives. Of particular note, Mr. Fairfax stated:
OSHA also has issued two important new enforcement documents. The Site Specific Targeting Program (SST) for 2009, “is OSHA’s main programmed inspection plan for non-construction workplaces that have 40 or more employees.” To compile the SST, OSHA surveyed 80,000 large employers in historically high-rate industries, requiring them to report their injury and illness rates. Employers in manufacturing who reported a particularly high “Days Away, Restricted, or Transferred (DART) Rate” (over 8.0) or “Days Away from Work Injury and Illness (DAFWII) Case Rate” (over 6.0) should expect an SST inspection within the next year. Non-manufacturing employers who reported a DART Rate over 15.0 or DAFWII Rate over 13.0 also should expect an inspection under the SST. Nursing and personal care facilities are treated separately under the SST and will be subject to an inspection if they reported a DART Rate over 17.0 or a DAFWII Rate over 14.0.
OSHA also reissued its petroleum refinery NEP. This continues OSHA’s focus on enforcing its process safety management (PSM) standard in refineries. Employers in NAICS code 324110 should review their PSM programs in anticipation of an OSHA inspection of their facilities.
President Barack Obama has announced he intends to nominate Professor David Michaels to be the Assistant Secretary of OSHA. Professor Michaels is the interim chair of the Department of Environmental and Occupational Health at the George Washington University School of Public Health in Washington, D.C. If confirmed, Professor Michaels will join Acting Assistant Secretary of OSHA Jordan Barab in the political leadership of the safety and health agency.
In addition to his current position with George Washington University, Professor Michaels has a long history in public health. During the Clinton Administration, Professor Michaels was Assistant Secretary for Environment Safety and Health at the Department of Energy, where he played a role in overseeing safety and health issues for employees at nuclear weapons facilities.
While it is too early to predict Professor Michaels’s likely priorities, in past writings, he has indicated the need for OSHA: (1) to issue a workplace injury and illness prevention program rule; and (2) to develop an electronic recordkeeping and reporting system. Both would further past and present OSHA initiatives.
During the Clinton Administration, OSHA developed, but never issued, a Safety and Health Program rule which would have required employers to implement a broader process for preventing injuries and illnesses in the workplace. Should Professor Michaels be confirmed, he may press his interest in an injury and illness prevention program rule, likely reigniting discussions regarding the need for employers to implement safety and health programs at their worksites.
A potential electronic recordkeeping system also fits neatly into OSHA’s current enforcement efforts. OSHA will be releasing a Recordkeeping National Emphasis Program (NEP) in the next few weeks, which will focus enforcement resources on recordkeeping inspections in certain establishments. OSHA will perform thorough records reviews and investigate the extent to which employers may be discouraging workers from reporting injuries and illnesses. The Department is intent on rooting out underreporting. An electronic recordkeeping system could make it easier for the agency to monitor worksite injuries and illnesses and possible underreporting.
No information has been released as to when Professor Michaels’s confirmation hearings may be held. This announcement, however, may calm the uncertainty that had been swirling around OSHA as to who would be the permanent political head of the agency.
We will, of course, continue to keep you apprised of developments with respect to the nomination.
When OSHA launches its recordkeeping National Emphasis Program (NEP) later this year, employers cannot accuse the agency of inadequate warning. Since early March, OSHA officials have signaled the impending NEP. Employers should take time now to review their OSHA recordkeeping logs and practices to prepare for an NEP inspection.
Just last week, OSHA reminded us how seriously it is taking recordkeeping and the perceived underreporting of occupational injuries and illnesses. The Bureau of National Affairs (BNA) reported on remarks by Acting Assistant Secretary of OSHA, Jordan Barab, at the annual American Society of Safety Engineers convention in San Antonio:
Barab said OSHA’s pending recordkeeping National Emphasis Program will scrutinize companies in high-risk industries that post strikingly low accident and injury rates. OSHA inspectors will look not only at a company’s records but also its safety policies, he said. In particular, agency inspectors will look for companies that discourage their employees from reporting workplace accidents, Barab said.
The recordkeeping NEP will involve more than just a standard records review. Employer programs that “discourage” employees from reporting workplace accidents will be targeted by OSHA. Unfortunately, OSHA has not provided additional information on the types of programs it is concerned about. However, OSHA had a provision in the Clinton Administration’s ergonomics standard, which was revoked by Congress and President Bush in 2001, which sought to address a similar concern. OSHA required in that rule that employers not develop policies that discourage the reporting of musculoskeletal disorders (MSDs). In the preamble to the final rule, OSHA suggested that the following could run afoul of this provision:
Employers should prepare for an OSHA recordkeeping inspection by taking some time to:
As important, employers should look at their safety incentive programs and injury and illness reporting procedures for any evidence that these protocols are discouraging employee reports.
Roger Kaplan, a Partner in Jackson Lewis's Long Island office, contributed to this Post.
In a new letter of interpretation, OSHA has confirmed that injuries to employees sustained at off-site team-building events are recordable on OSHA logs, so long as the injuries also meet other general recording criteria (such as requiring medical treatment beyond first aid). Employers are encouraged to review their recordkeeping practices to ensure that they are complying with this interpretation of OSHA’s recordkeeping rule.
OSHA was asked whether an injury incurred while an employee was go-cart racing at an off-site team-building activity was “work-related” under OSHA’s rule. In the scenario presented to OSHA, employees were not required to participate in the go-cart racing or other team building events. However, they were required to attend an off-site meeting and luncheon. In OSHA’s view, the employee was at the go-cart facility as a condition of employment and thus was “in the work environment.” Any injury or illness that arises is therefore presumed to be work-related in the view of the Agency.
Employers often hold team-building events at locations outside the workplace. If injuries occur during these events, employers must record them on their OSHA logs, assuming the injuries meet other recordability criteria.
With OSHA developing a National Emphasis Program on recordkeeping, now is the time for employers to review their recordkeeping procedures and logs to ensure they are fully compliant.
Signaling its renewed focus on enforcement, OSHA has announced it is developing six new National Emphasis Programs (NEPs). NEPs focus OSHA’s resources on industries, hazards, and occupational injuries and illnesses that need additional targeted enforcement, in the Agency’s view.
OSHA’s Director of Enforcement Programs revealed the following industry-specific NEPs are in development:
Employers in these industries should expect additional inspections and take steps now to ensure their safety and health practices are fully compliant with OSHA requirements.
Even more employers, however, can anticipate increased scrutiny on account of OSHA’s recordkeeping initiative. As a result of questions raised by Congress and labor organizations that injuries and illnesses are underreported, OSHA announced it is developing a recordkeeping NEP. All employers who are required to keep OSHA injury and illness logs should review them now for accuracy, completeness, and appropriate certification.
Finally, OSHA is developing an NEP dealing with occupational asthma, a growing area of concern for OSHA and the National Institute for Occupational Safety and Health.
In a recent speech, newly confirmed Secretary of Labor Solis committed OSHA to increased enforcement. These NEPs will drive much of that enforcement in coming months.
In a recent letter of interpretation addressing a common issue at worksites around the country, OSHA confirmed that injuries to employees sustained at the worksite as a result of “horseplay” are recordable on OSHA Logs, so long as the injuries also meet other general recording criteria (such as requiring medical treatment beyond first aid).
The interpretation stems from an incident described as “horseplay gone badly.” At the end of a work day, two supervisors got into a physical confrontation while changing to go home. One supervisor pulled a knife and stuck the other in the arm, resulting in several sutures.
OSHA stated that the injury was recordable. First, because the injury resulted from an event occurring in the work environment, it was presumed to be work-related and none of the exceptions to this “geographic presumption” applied. The exceptions include, among other things, injuries such as those resulting from an employee eating, drinking, or preparing food for personal consumption, those involving signs or symptoms that surface at work but result solely from a non-work-related event, and those caused by a motor vehicle accident occurring on a company parking lot while the employee is commuting to or from work. Second, because the injury required medical treatment beyond first aid, OSHA concluded that it satisfied the other recordability criteria related to severity.
OSHA dismissed as essentially irrelevant the issue of whether the injury resulted from activities that were “not directly productive” to the employer’s work. OSHA also reiterated that there is no general exception under the recordkeeping rule for violence that occurs at the worksite.
Situations such as this are all too common in the workplace. Aside from taking steps to address violence in the workplace generally, employers must ensure that when an incident occurs and injury results, it is properly recorded under OSHA’s rules, if warranted.
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