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.

OIG to OSHA “Improve Guidance for Fatality and Severe Injury Reporting”

Three years after introducing new severe injury reporting requirements that require employers to report any work-related amputation, in-patient hospitalization, or loss of an eye to OSHA within 24 hours of the incident, and fatalities within 8 hours, the Office of the Inspection General (OIG) conducted an audit to determine if OSHA had effectively implemented these new requirements.

According to an OIG report issued on September 13, 2018, between January 2015 and April 2017, 4,185 fatalities and 23,282 severe injuries were reported to OSHA under the new requirements.  Dr. Michaels, the former Assistant Secretary, estimated that at least 50% of reportable fatalities or injuries were not reported.

OIG’s audit set out to answer the question:

Has OSHA effectively implemented its revised fatality and severe injury reporting program?

OIG’s final report totals 24 pages, much of which repeats and emphasizes the same findings.

To answer its question, OIG

  • Tested a “random sample of 50 fatalities and 100 severe injuries”
  • Focused on who should investigate reported cases and whether employers abated hazards
  • Assessed the adequacy of OSHA’s procedures for identifying unreported injuries

The results of the audit led OIG to conclude that OSHA:

  • Took steps to implement the new reporting guidelines, e.g. issued guidance, publicized the changes, sent postcards to employers who had not previously been required to keep records
  • Conducted 10,475 on-site inspections in response to employer-reported incidents while employers conducted 14,834 investigations (known as rapid response investigations)
  • Estimated at least 50% of severe injuries went unreported – however, OIG recognized that OSHA may not have tools to remedy this (e.g. lack of access to state workers’ compensation programs data) and found that employers may not report “because they perceived the cost of not reporting to be low”
  • Was inconsistent in its practices for detecting and preventing underreporting
  • Citations as a deterrent for late reporting or failing to report were used inconsistently despite increasing the unadjusted penalty for not reporting a severe injury from $1,000 to $5,000
  • Did not provide evidence to support decisions for not issuing citations
  • Had no way to confirm that employers abated hazards – guidance states employers “should” rather than “shall” provide documentation of abatement – therefore, OSHA had closed cases without evidence that corrective action had been taken
  • Did not perform required OSHA inspections for 906 cases categorized as “Category 1” which are the most severe, such as fatalities, two or more in-patient hospitalizations
  • Failed to monitor any employer-conducted investigations

OIG’s recommendations to OSHA:

  1. Develop formal guidance and train staff on how to detect and prevent underreporting
  2. Consistently issue citations for late reporting
  3. Clarify some of its guidance
  4. Emphasize need to conduct inspections for all incidents classified as Category 1

OSHA had mixed reactions to OIG’s findings. The Agency agreed that it could improve case file documentation and monitoring to improve accuracy, recognized the need for continued staff training and guidance to ensure consistencies, and agreed Area Directors should justify their decisions.  OSHA pointed out that an employer is only under a legal obligation to report an event – not to conduct an investigation nor provide proof of abatement – and only partially agreed with the recommendations for late reporting and conducting inspections for all Category 1 incidents.

In addition to the findings and recommendations of the OIG audit, another important take away from this audit is that there are a handful of states that are utilizing workers’ compensation data to identify underreporting.  Some states are cross referencing this data and issuing citations to employers for failing to report amputations or hospitalizations.

With the ink barely dry on OIG’s report, it is still too early to see how, or if, changes will be made to OSHA’s severe injury reporting program. We will report any updates as we hear of them.  You can access the full OIG report here.

OSHA Seeks ACCSH Nominations

OSHA is seeking nominations for new members for the Advisory Committee on Construction Safety and Health (“ACCSH”).  ACCSH is an advisory committee that provides OSHA guidance and input on the promulgation of standards in the construction industry. The Assistant Secretary appoints a total of fifteen members representing various stakeholders in the construction industry.  The members appointed will represent employers, employees, State safety and health agencies, and the public. ACCSH members serve staggered two year terms. The committee typically meets several times a year for one or two days per meeting.   Nominations must be submitted by November 16, 2018.  Members will be selected based on “their experience, knowledge and competence in the field of occupational safety and health, particularly as it pertains to the construction industry.”

Additional information can be found in the Federal Register notice announcing the request for nominations for membership to ACCSH.

Group Asks Court to Require OSHA to Electronically Accept OSHA 300 Logs and 301 Forms

In response to OSHA’s announcement in May this year that the agency would not require the electronic submission of 300 Logs or 301 Forms for employers with establishments of 250 or more employees, Public Citizen,  a consumer rights advocacy group, filed a lawsuit in the U.S. District Court for the District of Columbia challenging OSHA’s suspension of the requirement to electronically submit the 300 Log or 301 Forms.

OSHA suspended the electronic submission of the 300 Log and 301 Forms because the agency was in the process of developing a proposed rule amending the requirement under section 1904.41(a)(1). That proposed rule was issued on July 30, 2018 and the comment period is still open and will end on September 28, 2018.

On September 7, 2018, Public Citizen, filed a motion seeking a preliminary injunction.  Public Citizen is requesting the federal court to order OSHA to lift the suspension of the electronic submission of the 300 Log and 301 Forms and require OSHA to require and collect from employers the 300 Log and 301 Forms that were due on July 1, 2018.

In its motion, Public Citizen alleges that OSHA violated the Administrative Procedures Act (“APA”) by indefinitely delaying the electronic submission of the 300 Log and 301 Forms without going through notice and comment rulemaking.  Further, the group alleges that OSHA’s actions are arbitrary and capricious in violation of the APA because the agency provided no rationale basis for the change in its position.

Public Citizen claims that OSHA’s failure to collect this data will irreparably harm the group because the data “would have provided [Public Citizen] access to workplace injury and illness data from the covered establishments, which they would have analyzed in the course of their work on workplace safety and used to advocate for workplace safety protections.” However, there is a significant question as to whether there is any legal requirement for OSHA to make such information publically available, and OSHA has made clear recently that it would not make such information publically available.   OSHA has stated that it believes such data is exempt from release under the Freedom of Information Act.

It is anticipated that OSHA will file an opposition to Public Citizen’s motion for a preliminary injunction.

 

OSHA’s Respirable Crystalline Silica Standard for Construction FAQs

The Occupational Safety and Health Administration (OSHA) has released a set of 53 Frequently Asked Questions (FAQs) to provide guidance to employers and employees regarding OSHA’s respirable crystalline silica standard for construction. The standard requires employers to limit worker exposures to respirable crystalline silica and to take other steps to protect workers.

The FAQs are extensive and were developed by OSHA in consultation with industry and union stakeholders. A short introductory paragraph is included for each group of questions and answers to provide background information about the underlying regulatory requirements. While employers are encouraged to review all of the FAQs, I have outlined some of the clarifications provided in the document.

You can access my article on the FAQs here.

OSHA Further Delays Beryllium General Industry Compliance Dates

OSHA recently announced that the compliance date for “specific ancillary requirements of the general industry beryllium standard” would be extended to December 12, 2018. At this time, OSHA is preparing a Notice of Proposed Rulemaking designed to clarify these provisions as well as addressing employers’ concerns with compliance.

Compliance Date Extended until December 12, 2018

The compliance date for the requirements listed below has been extended until December 12, 2018.

  • Provisions related to methods of compliance
  • Beryllium work areas
  • Regulated areas
  • Personal protective clothing and equipment
  • Hygiene areas and practices
  • Housekeeping
  • Communication of Hazards
  • Recordkeeping

NOT subject to the Compliance Extension

  • New Permissible Exposure Limits (PELs) for general industry, construction, and shipyards
  • General industry provisions enforceable as of May 11, 2018:
    • exposure assessment
    • respiratory protection
    • medical surveillance
    • medical removal
  • Provisions on change rooms and showers (March 11, 2019 compliance date)
  • Implementation of engineering controls (March 10, 2020 compliance date)

 

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