OSHA Proposes to Revise Electronic Submissions to Require Only 300A Forms

Today OSHA formally published a Notice of Proposed Rulemaking (NPRM) in the Federal Register revising the Obama-era regulation,  Improve Tracking of Workplace Injuries and Illnesses. The proposed rule rescinds the requirement for establishments with 250 or more employees to electronically submit information from the OSHA 300 Log and 301 Form and adds a requirement for covered establishments to include the Employer Identification Number (EIN) with their submissions.

Due to the potential risk of disclosure of private employee information and the lack of uncertain enforcement benefits from collecting the 300 Log and 301 Form, OSHA is proposing to eliminate that requirement.  In the Federal Register OSHA noted,

The injury and illness data electronically submitted to OSHA from Form 300A…gives OSHA a great deal of information to use in identifying high-hazard establishments for enforcement targeting. To that end, OSHA has designed a targeted enforcement mechanism for industries experiencing higher rates of injuries and illnesses based on the summary data.  By contrast, OSHA has provisionally determined that electronic submission of Forms 300 and 301 adds uncertain enforcement benefits, while significantly increasing the risk to worker privacy, considering that those forms, if collected by OSHA, could be found disclosable under FOIA [Freedom of Information Act].

Further, OSHA is proposing to add a requirement for employers to include their EIN in an effort to avoid duplicative reporting.

Collecting EINs would increase the likelihood that the Bureau of Labor Statistics (BLS) would be able to match data collected by OSHA under the electronic reporting requirements to data collected by BLS for the Survey of Occupational Injury and Illness (SOII).

OSHA has specifically raised the following questions:

  1. What risks to worker privacy are posed by the electronic collection of information from Forms 300 and 301 from establishments with 250 or more workers?  How likely are these risk to materialize?  How could OSHA make them less likely, and what resources would be required? Given the limitations identified above, what are the benefits of electronically collecting this information?
  2. Besides the Bureau of Labor Statistics, what other agencies or organizations in the public and private sectors use automated coding (autocoding) systems for text data in data collections?
  3. Besides the Department of Health and Human Services, what other agencies and organizations in the public and private sectors use automated de-identification systems to remove PII from text data before making the data available to the public? What challenges have they faced in using those systems to keep PII protected?
  4. Would employers required to electronically report information to OSHA under part 1904 consider the EIN to be exempt from disclosure [under FIOA], either as confidential business information of for another reason? Are there any circumstances where the EIN would be considered Personally Identifiable Information (PII)? OSHA also seeks comments on privacy concerns that might arise from employers submitting their EIN.

Unfortunately, the proposed regulation does not address the anti-retaliation provisions including whether certain policies are considered unreasonable and deter employees from reporting injuries and illnesses and therefore are in violation of the rule.  The agency had previously vocalized that policies such as certain drug testing and safety incentive programs were prohibited under the rule. As such, that employers would be subject to citations for such allegedly discriminatory policies despite Congressional intent that Section 11(c) of the OSH Act provide the exclusive remedy for employees who experience retaliatory and discriminatory conduct in relation to safety and health.

OSHA made clear in the proposed rule that the agency was only seeking comments on the electronic submission and EIN and “not on any other aspects of part 1904.”  This signals OSHA is unlikely to change those Obama-era requirements despite significant objection from the employer community.

Public comments are due 60 days from today’s publication, September 28.

Michigan OSHA Clarifies Requirements for Eyewashes and Safety Showers

Earlier this month MIOSHA released a new Fact Sheet entitled Eyewashes and Safety Showers. Briefly, this Fact Sheet states the general requirement that:

Suitable facilities for quick drenching or flushing of the eyes and body must be provided within the work area for immediate emergency use when the eyes or body of any person may be exposed to injurious or corrosive substances.

The fact sheet summarizes an Agency Instruction (MIOSHA-STD-07-1R4) dated April 12, 2018 and clarifies what constitutes an “injurious or corrosive substance,” “suitable facilities” and location of suitable eyewashes and showers.

Injurious or Corrosive Substance

  • The chemical manufacturer’s or importer’s hazard classification will be the primary criteria relied upon. The use of pH will not be the primary measure of defining “injurious or corrosive.”
  • “[I]njurious or corrosive materials” will be defined as chemicals that have the GHS classification of serious skin/eye damage and serious skin/eye irritation.” Employers should review Section 2 of an SDS  to help determine if an eyewash/shower is required.  Look for statements such as “severe skin burns and eye damage”; “serious eye damage”; or “serious eye irritation.”
  • “A GHS classification reading “causes eye irritation” (Category 2B) would not require an eyewash/shower.

Suitable Facilities

  • The activation time of the eyewash control valve must be within 1 second and simple to operate
  • More than one motion to activate an eyewash is allowed so long as that activation occurs in one second or less.
  • Second/separate motion to remove nozzle covers is not permitted

Location of Eyewash/Shower

  • Location of the emergency shower and/or eyewash facility should be within a 10 second travel distance which equates to 55 feet
  • Location of the shower or eyewash facility must be on the same level as the hazard and easily accessible, clearly marked and well lighted.

Personal Use Eyewashes

  • Personal wash units (e.g. 12-16 oz bottles) may be supplemental but do not constitute eyewash equipment.
  • Self-contained or portable units must be capable of delivering to the eyes not less than 1.5 liters per minute (0.4 gallons per minutes) for 15 minutes.

To learn more, see the MIOSHA Fact Sheet (Eyewashes and Safety Showers) and Agency Instruction MIOSHA-STD-07-1R4.

OMB Finishes Review of Revised “Improve Tracking of Workplace Injuries and Illnesses” Rule

In a May post we noted that OSHA had moved closer to publishing a proposed rule revising the Obama-era regulation,  Improve Tracking of Workplace Injuries and Illnesses by submitting the proposed rule to the Office of Management and Budget (OMB) for review under Executive Order 12866.  This review was completed yesterday, July 23, and now signals that OSHA has jumped the final hurdle before it can publish a new proposed rule.  In the Spring Regulatory Agenda, OSHA identified July as its target date for issuance of a Notice of Proposed Rulemaking.  OMB’s completition of its review suggests that OSHA will likely issue a proposed rule in the Federal Register soon, possibly making its projected timeframe.

It is anticipated that the proposed regulation will eliminate the requirement that large establishments, those with 250 or more employees, electronically submit the establishment’s OSHA 300 Log and 301 Forms annually and only be required to submit the 300A Form on an annual basis. In the Spring Regulatory Agenda, OSHA stated,

OSHA proposes to amend its recordkeeping regulation to remove the requirement to electronically submit to OSHA information from the OSHA Form 300 (Log of Work-Related Injuries and Illnesses) and OSHA Form 301 (Injury and Illness Incident Report) for establishments with 250 or more employees which are required to routinely keep injury and illness records. Under the proposed rule, these establishments would be required to electronically submit only information from the OSHA Form 300A (Summary of Work-Related Injuries and Illnesses).

A big issue of interest to employers will be whether the  proposed changes contain revisions to the “anti-retaliation” provisions of the regulation.  Specifically, the current regulation allows OSHA to cite an employer for having policies or procedures that may discourage employees from reporting a work-related injury or illness, which some stakeholders argue is in conflict with the OSH Act and Congressional intent with the whistleblower provisions under Section 11(c).

Employers should follow this rulemaking carefully as it is likely to change the requirements for the electronic submission of recordkeeping forms.  All covered employers were required to submit their 2017 300A Form electronically through OSHA’s Injury Tracking Application by July 1, 2018. Employers can continue to electronically report their 2017 300A Form to OSHA, but submissions after July 1, 2018 will be flagged by OSHA as “Late”.

 

Cal/OSHA Publishes a Fact Sheet and Poster Regarding California’s Hotel Housekeeping Musculoskeletal Injury Program

Authored by Jonathan Siegel

Cal/OSHA just published a Fact Sheet and a Poster regarding Cal/OSHA’s new requirement for covered employers to create and maintain a Hotel Housekeeping Musculoskeletal Injury Program (“MIPP”) and also train their housekeepers with respect to the MIPP.  We previously discussed California’s new requirement in our blog on June 25, 2018 called, California’s Hotel Housekeeping Standard: Ready or Not, Here it Comes.

By July 1, covered employers must establish, implement, and maintain a MIPP that addresses risk factors specific to housekeepers. The written MIPP may be incorporated into a California Injury Illness or Prevention Program (“IIPP”) or kept as a separate program. In addition to the MIPP, supervisors and housekeepers must be trained in:

  • Signs and symptoms of musculoskeletal injuries;
  • The elements of the MIPP;
  • The process for reporting safety and health concerns without fear of reprisal;
  • Good body mechanics and the use of controls in the workplace;
  • The importance of reporting symptoms early; and
  • Practice of using identified controls and tools.

Training must occur when the MIPP is first established, to all new housekeepers and supervisors, to all housekeepers given new assignments for which training was not previously provided, and at least annually thereafter. To ensure compliance with the new standard, covered employers in California should develop their MIPP and train housekeepers on its contents. In addition, employers should plan to begin conducting worksite evaluations to ensure that they are completed by October 1, 2018.

If you have any questions regarding Cal/OSHA’s new requirement, please feel free to contact Bradford T. Hammock in our OSHA group or Jonathan Siegel or the attorney you normally work with at Jackson Lewis.

Cal/OSHA Issues Advisory for Employers to Take Precautions to Protect Workers Exposed to Hazards Relating to Wildfires

California  temperatures are rising leading to several active wildfire incidents in the state.  To ensure worker safety, Cal/OSHA has issued a high heat advisory for employers with outdoor workers in Central and Southern California and is also advising employers to take special precautions to protect workers from hazards associated with wildfire smoke and other fire related hazards.  Click here to read the full article on Jackson Lewis’ California Workplace Law Blog.

California’s Hotel Housekeeping Standard: Ready or Not, Here it Comes

California’s long-awaited standard on “Hotel Housekeeping Musculoskeletal Injury Prevention” is finally here, coming into effect for California hotels and other lodging establishments on July 1, 2018. The standard is designed to control the risk of musculoskeletal injuries to housekeepers.  The standard applies to “lodging establishments,” such as hotels, motels, resorts, and bed and breakfast inns.

By July 1, covered employers must establish, implement, and maintain a musculoskeletal injury prevention program (“MIPP”) that addresses risk factors specific to housekeepers. The written MIPP may be incorporated into the IIPP or kept as a separate program.  The MIPP must include:

  • Names or job titles of persons with authority for implementing the MIPP at each worksite;
  • A system for ensuring that supervisors and housekeepers follow the safe work practices and implement the controls required by the MIPP;
  • A system for communicating safety and health requirements with housekeepers that is understandable to them;
  • Procedures for identifying and evaluating housekeeping hazards through a worksite evaluation (to be initially completed by October 1, 2018);
  • Procedures for investigating musculoskeletal injuries to housekeepers;
  • Methods or procedures for correcting hazards in a timely manner; and
  • Procedures for reviewing, at least annually, the MIPP at each worksite.

In addition to the MIPP, housekeepers must be trained in:

  • Signs and symptoms of musculoskeletal injuries;
  • The elements of the MIPP;
  • The process for reporting safety and health concerns without fear of reprisal;
  • Good body mechanics and the use of controls in the workplace;
  • The importance of reporting symptoms early; and
  • Practice of using identified controls and tools.

Training must occur when the MIPP is first established, to all new housekeepers and supervisors, to all housekeepers given new assignments for which training was not previously provided, and at least annually thereafter.

To ensure compliance with the new standard, covered employers in California should develop their MIPP by July 1, 2018 and train housekeepers on its contents. In addition, employers should plan to begin conducting worksite evaluations to ensure that they are completed by October 1, 2018.

OSHA Issues Silica Enforcement Memo

The silica standard for construction came into effect last year, on September 23, 2017, whereas most provisions of the silica rule as it pertains to general industry and maritime (29 CFR § 1910.1053) take effect this month, on June 23, 2018. The new standard for general industry and maritime imposes stricter permissible exposure limits (PELs) by establishing “a new 8-hour time-weighted average (TWA) permissible exposure limit (PEL) of 50 µg/m3, an action level (AL) of 25 µg/m3, and associated ancillary requirements.”

According to a June 8th memorandum from OSHA, “OSHA will assist employers that are making good faith efforts to meet the new standard’s requirements.”  The Agency indicates that those employers will be treated more leniently than employers in situations where “it appears an employer is not making any efforts to comply.”

If upon inspection, it appears an employer is not making any efforts to comply, compliance officers should conduct air monitoring in accordance with Agency procedures, and consider citations for non-compliance with any applicable sections of the new standard.

The determination as to whether an employer is or is not making a good faith effort to comply seems to be open to interpretation by the individual OSHA investigator.  The Agency appears to acknowledge this when it mentions yet-to-be-released “interim inspection and citation guidance” and refers to “effective implementation and uniform enforcement of the new standard.” (emphasis added)  This may in part be the reason why during the first 30 days of enforcement, any proposed citations for inspections carried out during this time period, will first have to go to OSHA’s National Office for review and approval before citations are actually issued.

A couple of publications produced by OSHA on the silica standard for general industry and maritime which may provide useful information are as follows:

The Joint Commission Issues Seven New Workplace Violence Prevention Recommendations

Many healthcare workers experience violence in the workplace often resulting from violent behavior by their patients, clients and/or residents. What can healthcare organizations do to improve safety and minimize the risk of workplace violence?  Click here to read the full article on Jackson Lewis’ Healthcare blog.

OSHA Proposes Limited Extension of the Compliance Dates for Beryllium

On May 11th OSHA began enforcement of certain requirements of the beryllium standard.  For generally industry, construction and shipyards this included the permissible exposure limits.  Further, in general industry enforcement began for the requirements of an exposure assessment, respiratory protection, medical surveillance and medical removal. While OSHA began enforcement of some of the these requirements it had previously announced a delay in enforcement of other ancillary provisions for general industry until June 25, 2018 and that it intended to issue a proposal to further extend this compliance date for the ancillary provisions to Dec. 12, 2018.

In last Friday’s Federal Register (June 1, 2018) OSHA announced its proposed rule to extend the compliance date for “certain ancillary requirements of the general industry beryllium standard” from March 12, 2018 to December 12, 2018.

However, the proposed extension does not delay enforcement for the following requirements in general industry:

  • Permissible exposure limits (PELS)
  • Exposure assessment
  • Respiratory protection
  • Medical surveillance
  • Medical removal protection provisions
  • Any provisions where the compliance dates in the standard take effect in 2019 and 2020

For the construction and shipyard industries, only the permissible exposure limits and short term exposure limit are being enforced until OSHA undertakes additional rulemaking for those industries. OSHA believes that the proposed extension for general industry “will maintain essential safety and health protections for workers” while the Agency works to “clarify specific provisions” in the beryllium standard weighing the health and safety of workers against the burdens placed on employers in complying with the standard.

Comments to the proposed rule may be submitted to OSHA by July 2, 2018. The Federal Register, including detailed instructions on how to submit may be found here.

OSHA’s Revised “Improve Tracking of Workplace Injuries and Illnesses Regulation” at OMB for Review

OSHA is a step closer to publishing a proposed rule revising the Obama-era regulation,  Improve Tracking of Workplace Injuries and Illnesses.  OSHA’s proposal has been submitted to the Office of Management and Budget (OMB) for review under Executive Order 12866.  This is the final internal review before the proposal gets published in the Federal Register and signals that OSHA’s Notice of Proposed Rulemaking may be out by late summer.

It is anticipated that the proposed regulation will eliminate the requirement that large establishments, those with 250 or more employees, electronically submit the establishment’s OSHA 300 Log and 301 Forms annually and only be required to submit the 300A Form on an annual basis. In its Spring Regulatory Agenda, OSHA stated,

OSHA proposes to amend its recordkeeping regulation to remove the requirement to electronically submit to OSHA information from the OSHA Form 300 (Log of Work-Related Injuries and Illnesses) and OSHA Form 301 (Injury and Illness Incident Report) for establishments with 250 or more employees which are required to routinely keep injury and illness records. Under the proposed rule, these establishments would be required to electronically submit only information from the OSHA Form 300A (Summary of Work-Related Injuries and Illnesses).

It is also anticipated that proposed changes may be made to the “anti-retaliation” provisions of the regulation.  Specifically, the current regulation allows OSHA to cite an employer for having policies or procedures that may discourage employees from reporting a work-related injury or illness, which some stakeholders argue is in conflict with the OSH Act and Congressional intent with the whistleblower provisions under Section 11(c).

Employers should follow this rulemaking carefully as it is likely to change the requirements for the electronic submission of recordkeeping forms.  Currently, all employers covered by the rule are required to submit their 2017 300A Form electronically by July 1, 2018.

 

 

 

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