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 Inspector 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)


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.