OIG Continues Criticism of OSHA’s Severe Reporting Initiative

In September, the Office of Inspector General (OIG) issued a draft report criticizing OSHA for not having appropriate controls in place to ensure employers report severe injuries and abate hazards. The September OIG report recommended to OSHA that the agency develop formal guidance and train staff on how to detect and prevent underreporting, consistently issue citations for late reporting, clarify some of its guidance and emphasize the need to conduct inspections for all incidents classified as Category 1.

OSHA pushed back on OIG in its response stating that it is not OSHA’s responsibility to ensure employer’s report injuries, rather it is an employer’s responsibility to do so and that there is no requirement for employers to abate hazards as part of the reporting of severe injuries.

In a separate report issued last month, Top Management and Performance Challenges Facing the U.S. Department of Labor, OIG again criticized the agency for failing to ensure that employers correct hazards when they report severe injuries to OSHA.

“OSHA needs to complete its initiatives to improve employer reporting of severe injuries and illness, and enhance staff training on abatement verification, especially of smaller and transient construction employers. OSHA also needs to complete the development of its evaluation and analysis program.”

OSHA maintains that the only obligation on an employer is to report the appropriate severe injury within the timeframes required by the standard and that there is nothing requiring employers to provide evidence of the abatement of hazards.

 

Workplace Injuries and Illnesses Continue to Decline

Workplace safety is moving in the right direction, according to employers and the Bureau of Labor Statistics (BLS). Based on an annual survey, BLS estimates that private industry employers had 45,800 fewer cases of nonfatal injuries and illnesses among full-time employees in 2017 as compared to the year before.

All measures – – including missed workdays, OSHA recordable incidents, injury-caused work restrictions – – have declined steadily this century. Employers had 2.8 total recordable cases per 100 workers, barely half the number reported in 2003. Importantly, all sectors surveyed showed a decrease, including manufacturing, construction, health care, transportation and warehousing. That means fewer days missed, fewer injuries, and fewer workers’ compensation claims.

The manufacturing sector had particularly good news, with median days away from work dropping to eight, a day fewer than in 2016. An area where manufacturers can focus is its leading cause of injury, sprains, strains and tears, which did not see a decrease in the past year.

Years in the Making…OSHA Finalizes Crane Operator Requirements for Construction Industry

Roughly eight years after the original promulgation of the final standard 29 CFR part 1926, Subpart CC – Cranes and Derricks in Construction, OSHA finally revises the requirements for operator certification. In August 2010 OSHA issued the final cranes and derricks in construction standard. As part of that standard, crane operators were required to either be certified or qualified (depending on the option elected by an employer) by November 10, 2014. 29 C.F.R. § 1926.1427(k). On February 10, 2014, OSHA proposed a three-year extension to the operator certification deadline until November 10, 2017 and requested public comment. The extension was due, in part; to issues pertaining to the requirements in the standard addressing crane operator certification that arose shortly after OSHA issued the final rule. After the final standard was issued, OSHA took the position that an operator is qualified to operate a particular piece of equipment if the operator is certified for that type and capacity of equipment or for higher-capacity equipment of that type. Therefore, an operator certified to operate a 100-ton hydraulic crane may operate a 50-ton hydraulic crane but not a 200-ton hydraulic crane.

This interpretation created significant concern for many industry representatives, including employers and unions, and firms that offer crane operator training. In November 2012, 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).

In response to these industry concerns and ACCSH’s recommendation that the Agency delay implementation of the operator certification deadline OSHA issued a three-year extension for operator certification from November 10, 2014 to November 10, 2017, which was further delayed by a year in August 2017 to November 10, 2018 while the agency gathered additional public input on the issue.

In May of this year OSHA issued a Notice of Proposed Rulemaking (NRPM) to update the cranes and derricks in construction standard seeking to revise the operator certification requirements in several major respects.  In the NPRM OSHA proposed to amend 29 CFR 1926 subpart CC by revising sections that address crane operator training, certification/licensing, and competency. OSHA sought to clarify training requirements for operators; to remove certification-by-capacity from certification requirements and to extend an employer’s duty to evaluate operators for their ability to safely operate equipment.

On November 9, 2018 OSHA issued a final rule revising the Cranes and Derricks in Construction standard addressing operator qualifications and certification. The final rule is effective on December 10, 2018, except the amendments to 29 CFR 1926.1427(a) and (f) (evaluation and documentation requirements), become effective February 7, 2019.

Evaluation of Operators

In some respects the final rule undermines the intention of the initial negotiated rulemaking committee, C-DAC. It was C-DAC’s intention that certification was a definitive means of ensuring that operators were properly trained and competent to safely operate equipment covered by the standard. The standard as revised requires employers to continue to evaluate an operator’s skill and competency to operate equipment safely. According to OSHA,

The certification provides an independent assessment of general baseline knowledge and skill and the employer evaluation focuses on specific knowledge and skills needed for the safe operation of particular equipment for particular tasks.

Similar to the proposed standard, the final standard is written in performance oriented language and does not establish what specific skills must be assessed but provides a list of performance-based criteria that employers must evaluate an operator’s skills and knowledge, such as safety devices, operational aids, software and lifting capacity, boom length, attachments, counter weight set up.  While the individual evaluating the operator does not need to be certified or have previous experience as an operator, the evaluator must have the knowledge, training and experience necessary to conduct the evaluation. The evaluation must be documented and maintained while the operator is employed by an employer.

Certification by Capacity of Crane

The final rule eliminates any requirement that operator certification be based on the lifting capacity of the crane. The final standard permits accredited testing organizations to certify operators based on the type of crane or based on the type and capacity of the crane.  According to OSHA,

The ‘type, or type and capacity’ language was requested by Crane Institute Certification and recommended by ACCSH…The language has been included in the final rule to make clear that while all certifying bodies must certify by type of crane for their certifications to meet OSHA’s requirements, testing organizations may also choose to specify for their certifications different levels of rated lifting capacity of cranes.

The final rule is effective on December 10, 2018, except the amendments to 29 CFR 1926.1427(a) and (f) (evaluation and documentation requirements), become effective February 7, 2019.

California Issues Emergency Regulation for Electronic Submission of 300A Forms by December 31, 2018

On October 10, 2018, California’s Department of Industrial Relations, Division of Occupational Safety and Health (“DOSH”) issued a notice of proposed emergency regulation requiring California employers to begin submitting their 300A Form to the Federal OSHA portal, Injury Tracking Application (“ITA“).  Specifically the regulation, if approved, will require the electronic submission of the 300A Form for each establishment with 250 or more employees at any time during the previous calendar year and for establishments with 20 or more employees but fewer than 250 employees in designated industries.  On October 18, 2018, DOSH issued a notice of amended notice of proposed emergency regulatory action.  This emergency regulation is based in part on Federal OSHA’s announcement in April 2018 that affected employers is State Plan states were required to submit electronically their 300A Forms even if the State Plan had not completed adoption of its own state rule.

According to DOSH,

The Department of Industrial Relations, Division of Occupational Safety and Health (“the Division”) is proposing to adopt emergency amendments to Sections 14300.35 and 14300.41 of Title 8 of the California Code of Regulations. These proposed amendments would require designated employers in California to submit electronically certain occupational injury and illness information to the federal Occupational Safety and Health Administration (“OSHA”), with the first submission due by December 31, 2018.

Prior to submitting a proposed emergency regulatory action for approval by the Office of Administrative Law (“OAL”), the agency must provide notice.  Interested parties are given five calendar days to submit comments on the proposed emergency regulations.  Then OAL has ten calendar days to review and make a decision on the proposed emergency regulation. Once the emergency regulation is approved it will be effective for 180 days.  During the 180 days, DOSH will move forward with the normal rulemaking process, including a public comment period. Based on the amended notice of proposed emergency regulatory action issued on October 18, 2018, the emergency regulation could be approved by November 3, 2018.

Employers in California should be prepared to submit their 2017 300A Forms to Federal OSHA no later than December 31, 2018 and their 2018 300A Forms no later than March 2, 2019.

 

OSHA to Use Electronic Recordkeeping Data to Target Specific Employers

OSHA is beginning to use its electronic recordkeeping system to target inspections for employers. The agency launched a new initiative last week to focus enforcement resources on workplaces with a history of injuries and illnesses, but have not provided required data under its electronic recordkeeping rules.

Announcing its Site-Specific Targeting 2016 (SST-16) Program, OSHA is focusing programmed inspections on general industry worksites. The program does not apply to the construction industry or to workplaces with fewer than twenty employees.

Employers who failed to provide 2016 Form 300A data to OSHA will be selected at random. OSHA will combine these employers with other employers with high DART (Days Away, Restricted or Transferred) rates. To verify data accuracy, OSHA will include a random sample of low-rate establishments for quality control purposes. OSHA will use these data to create new programmed inspection lists for use by its Area Directors and State Plan states that operate their own occupational safety and health plans.

OSHA hopes the move will boost electronic recordkeeping compliance, as barely half of employers who are required to submit OSHA Form 300A have actually done so. OSHA’s focus on particular employers will not replace its focus on particular hazards. The agency will continue with its nine current National Emphasis Programs focusing on lead, shipbreaking, trenching/excavations, process safety management, hazardous machinery, hexavalent chromium, primary metal industries and combustible dust, as well as its one hundred or so Regional and Local Emphasis Programs in place today.

What does this mean for industry? Manufacturers, energy and utility companies, trucking and transportation companies and other employers engaged in nonconstruction activities should make sure they are getting those 300A Forms filed by the deadline each year. Employers who have not should prepare to electronically submit their 2018 Form 300A by March 2, 2019, and prepare for a comprehensive OSHA inspection, without notice, especially if they have a history of injuries and illnesses.

Please contact Jackson Lewis with any questions.

What’s on OSHA’s Agenda…Fall 2018 Regulatory Agenda Released

It’s that time of year again…when OSHA tells us what is on the horizon for rulemaking activity. Earlier this week the fall 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 twenty-one regulatory entries for OSHA specific actions. In this year’s regulatory agenda there are nine regulatory actions in the pre-rule stage, which is consistent with the spring regulatory agenda.  These pre-rule stage regulatory actions include Communication Tower Safety, Emergency Response and Preparedness, Mechanical Power Press Update and Prevention of Workplace Violence in Health Care and Social Assistance. Five regulatory actions are in the proposed rule stage including  Amendments to the Cranes and Derricks in Construction Standard, Exposure to Beryllium NPRM to Review General Industry Provisions and the addition of Puerto Rico as a State Plan and seven  regulatory actions are in the final rule stage, which is up from only four in the spring regulatory agenda. So despite a promise on regulatory rollback, OSHA is moving ahead with finalizing seven regulatory actions.  These include: Occupational Exposure to Beryllium and Beryllium Compounds in Construction and Shipyard Sectors, Crane Operator Qualification in Construction, Rules of Agency Practice and Procedure Concerning OSHA Access to Employee Medical Records and Tracking of Workplace Injuries and Illnesses.  Two of the agency’s final regulatory actions are non-substantive changes to rules, such as Standards Improvement Project IV, which is intended to remove or revise duplicative, unnecessary, and inconsistent safety and health standards and Technical Corrections to 35 OSHA Standards and Regulations, which corrects typographical errors and inaccurate graphics in OSHA standards.

Some of OSHA’s regulatory actions under consideration:

 

RULE

 

ANTICIPATED AGENCY ACTION

 

Occupational Exposure to Crystalline Silica; Revisions to Table 1 in the Standard for Construction

 

Request for Information in December 2018

 

Updates to Hazard Communication Standard

 

 

Notice of Proposed Rulemaking in March 2019

 

Lock-out/Tag-out Update

 

 

Request for Information in October 2018

 

Crane Operator Qualification in Construction

 

Final Rule November 2018

 

Occupational Exposure to Beryllium and Beryllium Compounds in Construction and Shipyard Sectors

 

Final Rule June 2019

 

Rules of Agency Practice and Procedure Concerning OSHA Access to Employee Medical Records

 

Final Rule June 2019

 

Tree Care Standard

 

SBREFA Small Business Review in June 2019

 

The full federal Unified Agenda and Regulatory Plan can be found online at:

http://www.reginfo.gov/public/do/eAgendaMain

11th Circuit Deals Blow to OSHA’s Inspection Authority

Last week the U.S. Court of Appeals for the Eleventh Circuit affirmed a lower court’s order quashing an administrative warrant for the inspection of a poultry processing plant. USA v. Mar-Jac Poultry, Inc., No. 16-17745 (11th Cir. 2018). In February 2016, an employee of Mar-Jac Poultry, Inc. (“Mar-Jac”) was injured while repairing an electrical panel requiring the employee to be hospitalized.  Pursuant to Section 1904.39, Mar-Jac reported the hospitalization to OSHA.

In response to the reported hospitalization OSHA sent out compliance officers to inspect the Mar-Jac poultry processing facility.  OSHA sought to expand the scope of the inspection based on (1) a National Emphasis Program (“NEP”) the agency had focused on poultry processing facilities and  (2) the company’s recordkeeping forms, such as the 300 Logs. Mar-Jac consented to a limited inspection based on the reported hospitalization for the electrical injury.  OSHA then sought a warrant to expand the scope of the inspection arguing that the National Emphasis Program granted the agency authority to expand the inspection and that the 300 Logs established six common hazards at the facility, therefore, there was probable cause to believe such hazards existed. In April, a magistrate judge granted a warrant to OSHA.

Mar-Jac filed a motion to quash the warrant and a magistrate judge granted it denying OSHA the ability to expand the inspection. In finding in favor for Mar-Jac, the magistrate judge held that OSHA did not have reasonable suspicion of the other hazards as alleged by OSHA based on the 300 Logs and that Mar-Jac had not been selected by neutral criteria under the NEP.   OSHA appealed and a U.S. district court judge upheld the magistrate judge’s decision quashing the warrant. OSHA further appealed to the Eleventh Circuit.

On appeal OSHA argued that the recorded injuries on the 300 Logs provided reasonable suspicion that violations of hazards existed and therefore the warrant was properly granted.  The Eleventh Circuit disagreed and held “these logs on their own fail to establish reasonable suspicion of … violations.” In making this determination the Court looked to the recordkeeping regulation, which specifically states that recording injuries or illnesses does not mean that an employer is at fault or that a standard has been violated. 29 C.F.R part 1904.0. The Court concluded that the mere recording of work-related injuries or illnesses does not mean that they were the result of a violation of an OSHA standard, rule or regulation.  As such, recorded injuries or illnesses don’t “justify the issuance of an administrative warrant for evidence of OSHA violations.”

The Eleventh Circuit also found that

The existence of a ‘hazard’ does not necessarily establish the existence of a’ violation’ and it is a ‘violation’ which must be established by reasonable suspicion in the application [for the warrant]….[A] hazard does not itself establish a violation.

This decision has significant impact on OSHA’s ability to obtain a warrant for purposes of an inspection or for purposes of expanding an inspection.   It is always important for employers to remember that OSHA inspections have boundaries and employers should carefully consider the extent of consent they give in an OSHA inspection.

OSHA Clarifies Agency’s Position on Drug Testing and Safety Incentive Policies

In a memorandum to Regional Administrators dated October 11, 2018, OSHA clarified the agency’s position as to whether certain drug testing policies or safety incentive programs would be considered violations of part 29 C.F.R. § 1904.35(b)(1)(iv). Part 29 C.F.R. § 1904.35(b)(1)(iv) prohibits employers from discharging or discriminating against an employee for reporting a work-related injury or illness.  When the requirement was originally promulgated OSHA took the position that certain drug testing and safety incentive policies could deter employees from reporting work-related injuries and illnesses and would be a violation of the regulation.

In the memorandum OSHA stated that

“29 C.F.R. § 1904.35(b)(1)(iv) does not prohibit workplace safety incentive programs or post-incident drug testing. The Department believes that many employers who implement safety incentive programs and/or conduct post-incident drug testing do so to promote workplace safety and health. In addition, evidence that the employer consistently enforces legitimate work rules (whether or not an injury or illness is reported) would demonstrate that the employer is serious about creating a culture of safety, not just the appearance of reducing rates. Action taken under a safety incentive program or post-incident drug testing policy would only violate 29 C.F.R. § 1904.35(b)(1)(iv) if the employer took the action to penalize an employee for reporting a work-related injury or illness rather than for the legitimate purpose of promoting workplace safety and health.”

Safety Incentive Programs

According to the memorandum, OSHA acknowledges that some safety incentive programs promote workplace safety and health. The memorandum clarifies that not only are safety incentive programs that reward employees for reporting near-misses or hazards, or encourage involvement in a safety and health management system permissible but so are rate-based safety incentive programs, which focus on reducing the number of reported work-related injuries and illnesses.

When the regulation was promulgated employers raised concerns about the types of safety incentive programs that might be considered in violation of OSHA’s requirements.  At the time, OSHA took the position that “rate-based” policies where employees are awarded bonuses tied to the number of recordable injuries or illnesses was prohibited.  This memorandum explains that such policies are not necessarily prohibited.

OSHA clarified that “[r]ate-based incentive programs are also permissible under § 1904.35(b)(1)(iv) as long as they are not implemented in a manner that discourages reporting…OSHA would not cite the employer under § 1904.35(b)(1)(iv) as long as the employer has implemented adequate precautions to ensure that employees feel free to report an injury or illness.”

OSHA provided some examples of measures employers could take to implement adequate precautions which would avoid the unintentional deterrent effect of a rate-based safety incentive program or policy. “[A]ny inadvertent deterrent effect of a rate-based incentive program on employee reporting would likely be counterbalanced if the employer also implements elements such as:

  • an incentive program that rewards employees for identifying unsafe conditions in the workplace;
  • a training program for all employees to reinforce reporting rights and responsibilities and emphasizes the employer’s non-retaliation policy;
  • a mechanism for accurately evaluating employees’ willingness to report injuries and illnesses.”

The memorandum may allay some employer concerns about the use of rate-based safety incentive programs.  Particularly where an employer ties a portion of a supervisor or manager bonus to the number of recordable work-related injuries or illnesses. The use of such incentives under this memorandum are not prohibited per se.

Drug Testing Programs

OSHA also clarified that most drug testing policies are permissible, including post-accident drug testing.  OSHA specifically noted that the following types of drug testing policies were not in violation of OSHA’s requirements.

  • Random drug testing.
  • Drug testing unrelated to the reporting of a work-related injury or illness.
  • Drug testing under a state workers’ compensation law.
  • Drug testing under other federal law, such as a U.S. Department of Transportation rule.
  • Drug testing to evaluate the root cause of a workplace incident that harmed or could have harmed employees.  If the employer chooses to use drug testing to investigate the incident, the employer should test all employees whose conduct could have contributed to the incident, not just employees who reported injuries.

This guidance is the most direct and clear guidance provided to employers regarding OSHA’s position on drug testing policies and safety incentive policies. More importantly, it makes clear that as a general rule such policies are not a violation of OSHA requirements. Further, the memorandum directly states that it supersedes any other agency guidance previously issued which may have interpreted Sections 1904.35(b)(1)(i) and (iv) inconsistent with the agency’s position.

The memorandum also instructs agency officials to consult with OSHA’s Directorate of Enforcement Programs before issuing citations under § 1904.35(b)(1)(iv) relating to safety incentive or drug testing policies.

 

Another Low Employer Response Rate on Electronic Submission of 300A Forms

A recent Bloomberg Environment article reported that “Almost Half of Employers Didn’t Comply With Injury Reporting Rule.” Employers required to maintain injury and illness records were required to submit their 2017 annual summary of workplace injury and illnesses, OSHA 300A Form, by July 1, 2018. Approximately 460,192 employers were expected to file the 300A Form, but only 248,884 had actually filed by August 3, a month after the actual deadline.  Possible reasons to explain this 54% response rate, include:

  • Confusion among employers as to who is legally obligated to file and what documents are to be filed
  • The risk of repercussions for employers who fail to report is slight – OSHA can only cite for alleged violations less than 6 months old and when the Agency has cited employers for such violations the classification is typically other than serious.
  • Employers would prefer to risk being issued a citation for failing to report rather than reporting and giving OSHA data which could be used against them at a later date

OSHA experienced similarly low electronic submissions last December when the first submission of the 300A by employers was due. At that time OSHA found that one-third of employers failed to submit the 300A Form. In response OSHA announced it would engage in greater outreach to inform and educate employers of the obligation to submit the 300A Form. OSHA has also indicated that it was going to conduct a mass mailing outreach to employers who did not submit their 300A forms to inform them of their obligations under the regulation.

Employers who were required to submit the 300A Form but failed to do so are subject to a citation and penalty until January 1, 2019, which is the duration of the six-month statute of limitation for OSHA to issue such citations.

 

California Legislature Says Recordkeeping Violations Not Subject to Six-Month Statute of Limitations

Beginning in 2019, employers in California will now be on the hook for recordkeeping violations well beyond the six-month statute of limitations.  Bill Number AB 2334 (Occupational injuries and illnesses: employer reporting requirements: electronic submission) co-sponsored by California Labor Federation and California Professional Firefighters was introduced by Thurmond (D) earlier this year, passed the State legislature and was signed by the Governor on September 19, 2018.  The law goes into effect January 1, 2019.

This bill seems to be California thumbing its nose at the Trump Administration. In April 2017, President Trump signed a resolution which finalized the Congressional Review Act (“CRA”) process and nullified OSHA’s rule “Clarification of Employer’s Continuing Obligation to Make and Maintain Accurate Records of Each Recordable Injury and Illness,” informally referred to as the “Volks” rule.  This Obama-era rule was an attempt to undo a decision by the U.S. Court of Appeals for the District of Columbia which held OSHA is prohibited from issuing employers citations for failing to record injuries or illnesses beyond the six-month statute of limitations set out in the OSH Act. AKM LLC d/b/a Volks Constructors v. Sec’y of Labor, 675 F.3d 752 (D.C. Cir. 2012).

AB 2334 changes the definition of “occurrence” in the California Labor Code for purposes of the statute of limitation for Cal/OSHA violations relating to recordkeeping.  The legislature revised language in the Labor Code as follows:

A  citation or notice shall not  be issued by the division  more than six months after the occurrence of the violation. For purposes of issuing a citation or notice for a violation of subdivision (b) or (c) of Section 6410, including any implementing related regulations, an “occurrence” continues until it is corrected, or the division discovers the violation, or the duty to comply with the violated requirement ceases to exist. Nothing in this paragraph is intended to alter the meaning of the term “occurrence” for violations of health and safety standards other than the recordkeeping requirements set forth in subdivision (b) or (c) of Section 6410, including any implementing related regulations.

This revised language provides that recordkeeping violations continue until they are corrected, until Cal/OSHA discovers the violation or until the duty to maintain the record no longer exists. In short, beginning January 1, 2019 Cal/OSHA has authority to issue citations for recordkeeping violations that exist during the entire five-year recordkeeping retention period.

Additionally, the bill also requires Cal/OSHA to monitor Federal OSHA’s actions regarding the electronic submission of injury and illness records (Improve Tracking of Workplace Injuries and Illnesses).  In the event Federal OSHA “eliminates or substantially diminishes” the electronic submission requirements, Cal/OSHA is required to convene an advisory panel of both labor and management within 120 days to evaluate changes necessary to protect the goals of the electronic submission rule.

California employers should continue to review and update their work-related injury and illness records but should be prepared to see Cal/OSHA enforcement for recordkeeping violations that exist during the five year required retention period.  And, if Federal OSHA eliminates the requirement for employers with 250 or more employees to electronically submit the 300 and 301 Forms, as is currently proposed, it is very possible California will convene an advisory panel and consider alternative measures to require California employers to submit such data.

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