Reminder: Electronic submission due December 15th

Employers covered by the recordkeeping requirements in Section 1904 are reminded that Friday, December 15th is the DEADLINE to electronically submit their 2016 300A. This requirement applies to establishments with 250 or more employees and to establishments in certain high-risk industries with 20 or more but less than 250 employees.

The following OSHA-approved State Plans have not adopted the requirement to submit injury and illness reports electronically: CA, MD, MN, SC, UT, WA and WY and therefore establishments in these states are not currently required to submit their 300A.

To read more on this, go to https://www.oshalawblog.com/2017/11/articles/osha-delays-electronic-filing-by-two-weeks/.  Alternatively, contact us directly if you have questions.

OSHA Appeals Decision Invalidating its Multi-Employer Citation Policy

Although the Department of Labor under new Labor Secretary Alex Acosta has indicated that it will be scaling back on the broad interpretation of joint employer for purposes of determining enforcement liability, on November 6, 2017, OSHA filed an appeal to the U.S. Court of Appeals for the Fifth Circuit seeking to preserve the agency’s multi-employer citation policy which has been in place for decades. Under this policy, OSHA maintains that it has the authority under the OSH Act to issue citations not only to the employer whose employees are exposed to a hazardous condition (exposing employer) but also to employers who create, correct or control the worksite even if its own employees are not exposed to the hazard.  OSHA has extensively used this doctrine in multi-employer construction worksites to cite the general contractor as the “controlling employer” in addition to subcontractors.

However, this doctrine was recently challenged and invalidated by an administrative law judge in a case involving a citation issued against a general contractor in Texas. In Acosta v. Hensel Phelps Construction Co., OSHA issued a citation to the subcontractor whose employees were exposed to cave-in hazards in an excavation.  OSHA also issued the same citation to the general contractor as the “controlling employer” at the worksite.  On the contractor’s motion for summary decision, the administrative law judge held that the multi-employer doctrine was invalid in the 5th Circuit (which covers Texas) based on a prior decision which the judge found was controlling precedent in the circuit.  Consequently, the judge vacated the citation against the contractor since it did not have any employees exposed to the cited hazard.  The Review Commission declined the Secretary of Labor’s request to review the decision which made the judge’s decision a final agency order.

The Secretary has now filed an appeal with the 5th Circuit seeking to reverse the order and to obtain a decision affirming the multi-employer doctrine in the circuit.  Primarily, the Secretary argues that its interpretations and policies are entitled to deference and that the prior 5th Circuit decision relied upon by the administrative law judge is not controlling as it involved a negligence matter and not an OSHA case.

A decision in this case will have huge impact for construction employers in Texas, Louisiana and Mississippi which are covered by the 5th Circuit.  In addition, a decision by the 5th Circuit on OSHA’s multi-employer doctrine could present a split among federal circuit courts of appeal regarding the agency’s enforcement and citation authority under the OSH Act.  For now, employers should continue to expect OSHA to vigorously defend and enforce its multi-employer doctrine.

We will continue to update this blog with any new developments is this case.

OSHA Delays Electronic Filing By Two Weeks

Today OSHA announced that it will delay the electronic submission requirements for employers covered by the recordkeeping requirements in Section 1904 until December 15, 2017.  Last year OSHA finalized its  Improve Tracking of Workplace Injuries and Illnesses regulation, which established new requirements for certain employers to electronically submit their injury and illness recordkeeping forms via a secure website.  Specifically, employers covered by OSHA’s recordkeeing requirements must either file their 300A or their 300A, 300 Log and 301 Forms depending on the establishment size and other criteria.

The submission deadline was originally July 1, 2017, however, OSHA proposed to delay the date until December 1, 2017 to give employers additional time to become familiar with the portal, known as the Injury Tracking Application or ITA. Today, OSHA announced it would delay the submission deadline until December 15, 2017 giving employers an additional 14 days.

According to OSHA’s news release,

Unless an employer is under federal jurisdiction, the following OSHA-approved State Plans have not yet adopted the requirement to submit injury and illness reports electronically: California, Maryland, Minnesota, South Carolina, Utah, Washington, and Wyoming. Establishments in these states are not currently required to submit their summary data through the ITA. Similarly, state and local government establishments in Illinois, Maine, New Jersey, and New York are not currently required to submit their data through the ITA.

Further OSHA noted that it is currently reviewing the regulation for other potential revisions.

OSHA is currently reviewing the other provisions of its final rule to Improve Tracking of Workplace Injuries and Illnesses, and intends to publish a notice of proposed rulemaking to reconsider, revise, or remove portions of that rule in 2018.

It is anticipated that OSHA will proposal additional changes to this rule in the near future and OSHA will issue another Notice of Proposed Rulemaking in the Federal Register next year.

Delays Again for Crane Operator Certification for Construction Industry

In June we reported that OSHA intended to propose an extension of the November 10, 2017 compliance date for certification of crane operators.  Last Thursday, November 9th, OSHA made it official, announcing in the Federal Register that the deadline for employers to ensure crane operators in the construction industry are certified/qualified has been pushed back to November 10, 2018.  This also extends the employer’s duty to ensure employees are competent to operate a crane safely until the same date.  OSHA feels that this extension is necessary to avoid disruption to the construction industry.

Industry stakeholders have long been concerned that certification by an independent testing organization accredited by a nationally recognized accrediting organization does not ensure the competency of crane operators to do construction work.  Employers have said that they feel additional, site-specific training would be needed to ensure that a crane operator could safely operate a crane.  There has also been controversy surrounding Section 1926.1427(b)(2) which requires that for compliance with the standard, crane certification covers both type and capacity of equipment.

Originally, under the final crane standard published in August, 2010, the compliance deadline was November, 2014.  In late 2014, the compliance deadline was extend three years, to November 10, 2017.  The hope is that this new, one year delay will allow OSHA time to finally address ongoing issues.

Possible Cal/OSHA Regulation Regarding Workplace Violence for the General Industry

In 2014, the Cal/OSHA Division received a petition for a new workplace violence regulation for general industry.  Petition 542, which was originally submitted on behalf of teachers, has been used as the basis for consideration of a general industry standard on workplace violence.  This year, the CA Standards Board, the entity that promulgates new CA health and safety standards, held meetings on whether a general industry workplace violence standard was necessary.

In 2018, it is expected that the Division will draft a proposed regulation regarding workplace violence for general industry. The proposed regulation will likely include requirements similar to the health care workplace violence regulation (this regulation became effective on April 1, 2017) which requires the establishment, implementation and maintenance of a written Workplace Violence Prevention Plan (WVPP).  It is likely the new regulation will also include new recordkeeping requirements, training requirements, and reporting requirements.

It is the Division’s intent to create a single workplace violence regulation for all general industries, including retail, manufacturing, education, banking and food establishments. Significant compliance issues will result if the Division implements a general industry workplace violence regulation. Employers will have an opportunity to publicly comment on any proposed regulation.  We will continue to update the this blog as developments occur.

White House Nominates Scott A. Mugno to Head OSHA

Late last Friday, the White House issued a press release announcing President Trump’s intention to nominate several more key administration officials, including Scott Mugno as Assistant Secretary of Labor, Occupational Safety and Health.

According to the press release,

Mr. Mugno is currently the Vice President for Safety, Sustainability and Vehicle Maintenance at FedEx Ground in Pittsburgh, Pennsylvania.  He was previously the Managing Director for FedEx Express Corporate Safety, Health and Fire Protection in Memphis, Tennessee.  His responsibilities in both those positions included developing, promoting and facilitating the safety and health program and culture.

The White House press release highlights Mr. Mugno’s professional safety related accomplishments by noting that

Mr. Mugno was twice awarded FedEx’s highest honor, the FedEx Five Star Award, for his safety leadership at FedEx Express.

Prior to joining FedEx, Mr. Mugno, served as a Deputy Staff Judge Advocate for the Easter Region U.S. Army Military Traffic Management Command along with other legal positions in the U.S. Army JAG Corps.

Mr. Mugno is well respected among his peers and is viewed as a dedicated safety professional.  His role as a corporate safety director provides him valuable practical knowledge in approaching safety and health in the workplace and, if confirmed, he will be a valuable asset to OSHA.

 

Nomination for Assistant Secretary of Labor for OSHA Expected Soon

It is widely anticipated that President Trump’s announcement of Scott Mugno as his nominee for  the position of Assistant Secretary of Labor for the Occupational Safety and Health Administration (OSHA) is imminent – a position temporarily being filled by Loren Sweatt, the Deputy Assistant Secretary.  Scott Mugno is the VP of Safety, Sustainability and Vehicle Maintenance with FedEx Ground.  He started his career at FedEx Ground in 1994 as a Staff Attorney and has held his current position since 2011.  As Assistant Secretary of Labor, Mr. Mugno would have overall responsibility for OSHA including the regional and area offices tasked with ensuring employer compliance with workplace safety and health standards and regulations.

What Employers Need to Know about OSHA’s Respirable Crystalline Silica Rule for Construction

Full enforcement with the Occupational Safety and Health Administration’s new respirable crystalline silica rule in the construction industry began on October 23, 2017, according to the agency. The silica rule is one of the most comprehensive health standards ever issued for the construction industry and significantly reduces the Permissible Exposure Limit (PEL) for crystalline silica.

In addition, the rule requires construction employers to implement certain engineering and work practice controls and comply with such other requirements as using medical surveillance, adopting a written exposure control plan, and following certain housekeeping practices.  To get the details, click here.

OSHA Still Considering Revising Electronic Recordkeeping Rule

Authored by Ray Perez 

With the December 1, 2017 deadline fast approaching for covered employers to electronically submit injury and illness records to OSHA, the Agency has indicated that it is close to completing its review to the Obama-era Improve Tracking of Workplace Injuries and Illnesses final rule.  In a Status Report filed on October 10, 2017 with U.S. District Court for the Western District of Oklahoma which has stayed litigation over the rule pending further rulemaking, the Department of Justice (“DOJ”) indicated that OSHA continues to develop a Notice of Proposed Rulemaking (“NPRM”) to “reconsider, revise, or remove provisions of the [Rule]” as announced in the July 20, 2017 Office of Information and Regulatory Affairs’ regulatory agenda.

DOJ went on to state that it understands that OSHA has “drafted substantial portions of the NPRM, including draft regulatory text and a summary and explanation of the proposed changes, and that OSHA’s economists have made significant progress on the economic analysis and continue to refine it.  Once the analysis is finalized, the draft NPRM will proceed through the agency clearance process.”

The Status Report gives no indication as to when this process will be completed or when the NPRM will be published.  Many industry groups and the Commerce Department have urged the new administration and OSHA to eliminate provisions under the rule that would make employer injury and illness data publically available online and which would restrict existing employer policies such as safety incentive programs and post-accident drug testing.

Unfortunately, the filing does not reveal what parts of the rule may be subject to revision or removal.  There are some expectations that OSHA will maintain the electronic reporting requirements but will not make the information publically available. OSHA may also eliminate the rule’s anti-retaliation provisions.

We will provide updated information once we know more about any proposed changes to the rule.

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