Acosta Defends OSHA’s Collection of Injury & Illness Records

During the April 12th U.S. Senate Committee on Appropriation’s Subcommittee Hearing to review the FY2019 Department of Labor Budget Request, Labor Secretary Alexander Acosta was questioned on OSHA’s injury and illness record-keeping regulation passed under Obama’s administration, Improve Tracking of Workplace Injuries and Illnesses.

The focus of the questioning centered on weighing the usefulness and necessity of OSHA gathering information for enforcement against the risk of divulging employee’s personal information in a public forum. Senator Tammy Baldwin (D-WI) questioned Secretary Acosta who, in part, defended the rule, although admitting that the Agency “intends to publish a notice of proposed rulemaking to reconsider, revise, or remove portions of that rule in 2018.”  Secretary Acosta said that he believes the data gathered allows OSHA to better focus its enforcement inspections, saying that in the aggregate the information is useful and necessary so OSHA can focus inspections “on where injuries are occurring and what types of injuries.”  The difficulty arises in collecting that data in a manner which prevents personal identifiable information from being included.  Sen. Baldwin pointed out that other agencies have been able to achieve this, saying “I would hope this would be a pretty straightforward task.”  Acosta refuted that statement and again noted that collecting injury and illness data in the aggregate is useful and necessary to assisting OSHA with targeted inspections.

In last year’s Unified Regulatory Agenda, OSHA noted that it cannot guarantee that personally identifiable information will not be released and therefore, the Agency will not make the information publicly available. OSHA does not currently intend to post employer data on its website as previously planned.  This in turn has led to questions about the Agency’s motive for not publishing the data – the rationale being that under the Obama administration, the task of removing individual identifiable data had been discussed and resolved.

Since this regulation was first proposed, employers have been concerned not only about the privacy of employee information, but also about how such information, which is based off a no-fault recordkeeping system, fails to provide an accurate picture of safety and health in a workplace.  For example, when an employer does training on ergonomic related injuries there is typically a spike in the number of musculoskeletal disorder related cases on an employer’s OSHA 300 Log. This is due to the awareness that has been recently provided to employees, not to an unsafe working environment.  OSHA would expect to see this pattern and has said as much in the past.  Yet, to now rely on this data to suggest a particular employer has a poor history of workplace safety and health or suggest that such a place of employment is not safe is entirely misleading and contrary to the intent of OSHA’s no-fault recordkeeping system.

OSHA is still expected to issue a Notice of Proposed Rulemaking proposing to reconsider, revise or remove parts of the regulation.


Frustrations Grow as Nominations are Delayed

Scott Mugno’s confirmation to head OSHA appears to be one of three key Department of Labor nominees caught up in political arm wrestling. Republicans are blaming Democrats for delaying the process by drawing out debates to the full 30 hours permitted by the Senate Rules.  Senate Majority Leader Mitch McConnell (R-KY) voiced his frustration on April 9th warning that “[t]he Senate’s workweek will not end until all of these amply qualified nominees are confirmed.”  It should also be noted that a Senate vote on Mugno has yet to be calendared.

There are concerns that OSHA has lacked leadership and direction since Trump took office in January, 2017.  Senate Democrats have indicated that they are prepared to work with Mugno at the helm of OSHA – though they seem to expect that he will be a tough enforcer against violators rather than a follower of Trump’s deregulation agenda.

Currently, there is no indication when Mugno will be confirmed.

Complimentary Webinar: The Nuances of State Plans

Although state plans are required to be at least as effective as federal OSHA regulations, they can often be stricter, which means you can’t assume that just because your company is in compliance with federal OSHA, that it’s also in compliance with the governing state plan.  Carla Gunnin will tackle this topic on April 18th.  More information and the link to register can be found here.  We hope you will join us!

U.S. Government Passes 2018 Omnibus Spending Package with Modest Increase to OSHA Funding

With what has now become a regular ritual, lawmakers rushed to pass a $1.3 trillion omnibus bill on the last possible day to avoid a government shutdown. The 2,300-page bill was passed by the House last Thursday by a vote 256-167 with many Democrats joining Republicans to support the bill.  The Senate then passed the bill 65-32 on Friday, March 23, the final day before their current spending authority expired.  Despite a veto threat, President Trump signed the bill later that day averting a potential government shutdown and funding the government through September 30, 2018.

Although the administration had initially proposed to cut funding across the board, the final package primarily preserved spending levels along with significant increases in military and domestic spending. The omnibus spending bill in total funds $12.2 billion for the U.S. Department of Labor which represents a $192 million increase from FY 2017.  For OSHA, the FY 2018 spending bill provides an increase of $9.5 million over the administration’s funding request for a total of $553 million.

Among other things, the spending bill provides $208 million for federal enforcement, $100.85 million to state OSHA programs, $17.5 million for whistleblower enforcement, $499,000 for training and education, $3.5 million for the Voluntary Protection Programs and $10.5 million for Susan Harwood training grants. Despite the administration’s initial proposal to cut NIOSH funding by 40%, the spending bill allocated $335.2 million in funding.

Notably, the final bill drops several OSHA-related policy riders to ensure that it got enough votes from Democrats to pass. This included dropping stand-alone appropriations legislation Republicans considered in 2017 that would have prohibited the implementation or enforcement of OSHA’s 2016 injury reporting update rule and a measure to block enforcement of OSHA’s silica standard.

OSHA Announces Enforcement Policy for Failing to Electronically Submit Required Injury & Illness Records

Under OSHA’s Improve Tracking of Workplace Injuries and Illnesses regulation, certain employers covered by OSHA’s recordkeeping requirements must annually file either their 300A or their 300A, 300 Log and 301 forms depending on the establishment size and other criteria.  For 2017, all employers covered by the regulation were required to file only their 2016 300A form.

The deadline for filing the 2016 300A was originally July 1, 2017, however that was delayed until December 15th, 2017.  Then the Agency delayed that deadline further, allowing employers until midnight on December 30, 2017 to submit the information. During the lead-up to the submission deadline, 60,000 accounts were created on the Injury Tracking Application (“ITA”) and over 214,000 300A forms were submitted.  However, this number fell short of the 350,000 submissions (excluding state plans) that OSHA had anticipated.  According to OSHA, a little over one-third of establishments required to respond did not respond (non-responders).  Starting January 1, 2018, the ITA was no longer accepting the 2016 data and it is now too late to submit the 2016 300A form.

On February 21, 2018, OSHA issued an enforcement memorandum to Regional Administrators regarding the agency’s policy for non-responders. As part of any on-site inspection, OSHA has instructed its compliance officers to inquire whether that establishment has electronically filed its 2016 300A form. If the compliance officer learns that the establishment was required to electronically submit its 300A form and failed to do so, OSHA will issue an other-than-serious citation for failing to comply with the regulation.  According to OSHA, the agency has six-months from December 15, 2017, so until June 15, 2018 to issue citations to those employers who failed to electronically file the required information.

OSHA has also indicated that it will conduct a mass mailing outreach to employers who did not submit their 300A forms to inform them of their obligations under the regulation. Additionally, OSHA is currently reviewing the 300A forms that were submitted and intends to use the data to develop inspection targeting similar to the site specific targeting.

As we previously indicated on the blog, it is still anticipated that this regulation will be amended and a notice of proposed rulemaking will be issued in the future.

Congress Seeking a More Effective, Cooperative OSHA

Authored by Courtney Malveaux

Members of a key Congressional committee recently made clear that it is looking to nudge the Occupational Safety and Health Administration (“OSHA”) into a more cooperative direction. Some industry leaders have observed that, under the Trump administration, OSHA has begun to do just that.

Last Tuesday, the Workforce Protection Subcommittee of the House Committee on Education and Workforce held a hearing titled “A More Effective and Collaborative OSHA: A View from Stakeholders.” Subcommittee Chairman Bradley Byrne (R-AL), a former labor attorney, opened the hearing by noting that “employers are continuously struggling to comply with the ever-changing standards and new regulations released by OSHA every year.”  Chairman Byrne recalled visiting a Cintas worksite in Mobile, Alabama as it celebrated its certification as a Star site under OSHA’s Voluntary Protection Program, and he applauded workers who make workplace safety a priority.  Recalling fatal incidents at workplaces, Ranking Member Mark Takano (D-CA) urged enhanced criminal sanctions for criminal willful citations, increased enforcement resources and a return to Obama-era rulemakings stalled by the Trump Administration.

Committee members heard testimony from representatives of the Tree Care Industry Association, the National Association of Home Builders and the U.S. Chamber of Commerce, as well as Dr. David Michaels, who led OSHA as an Assistant Secretary of Labor in the Obama administration. Witnesses offered ideas such as a national, uniform tree trimming standard, simpler online guidance for small businesses, and deeper involvement of industry stakeholders in rulemakings.

If you want to read the tea leaves on upcoming moves, take note that the Chairwoman of the Education and Workforce Committee, Virginia Foxx (R-NC), emphasized small businesses’ challenges in keeping pace with OSHA regulations and a uniform tree trimming standard. Stay tuned.

For a resource on potential changes OSHA may consider for State Plan states, see OSHA Enforcement of the “As Effective As” Standard for State Plans: Serving Process or People?, 46 U. Rich. L. Rev. 323, 345 (2011).

Jackson Lewis attorneys are available to answer questions on developments in workplace safety regulations and legislation.

New OSHA Tree Care Publication

Earlier this month OSHA published a guidance document for the tree care industry, “Solutions for Tree Care Hazards.”  The two page publication addresses five major hazards for the tree care industry, including traffic control, chippers, aerial lifts, power lines and drop zones for falling objects.

The publication breaks each topic into risk factors and prevention tips and provides additional resources for each topic.  For example, for aerial lifts, OSHA addresses major causes of injuries and fatalities from aerial lifts such as falls and electrocutions.  Some of the prevention tips offered include:

  • inspect the lift and worksite before each use
  • set brakes when outriggers are used
  • use wheel chocks on sloped surfaces
  • use a body harness or a restraining belt with a lanyard attached to the bucket
  • tie off to an approved anchor point and stand firmly on the bucket’s floor

Unlike some other industries, there is no specific OSHA standard that regulates employers in the tree care industry.  Typically the general industry requirements under Part 1910 apply or OSHA uses the general duty clause, Section 5(a)(1), to enforce the ANSI Z133.1 requirements. Some state plans, like Maryland, however, have adopted Tree Care and Removal regulations.

OSHA does have the promulgation of a comprehensive tree care standard as a long term action item.  In the fall 2017 regulatory agenda, OSHA stated:

There is no OSHA standard for tree care operations; the agency currently applies a patchwork of standards to address the serious hazards in this industry. The tree care industry previously petitioned the agency for rulemaking and OSHA issued an ANPRM (September 2008); but the rulemaking was later removed from the Regulatory Agenda due to insufficient resources. Tree care continues to be a high-hazard industry. Stakeholder meetings will allow the agency to update the record and proceed to a future rulemaking.

A stakeholder meeting was held in July 2016 but no further agency action has taken place.

Employers Must Post OSHA 300A From February 1 – April 30

Employers covered by OSHA’s recordkeeping rule are required to prepare and post the OSHA Form 300A, “Summary of Work-Related Injuries and Illnesses,” beginning February 1 and keep the form posted until April 30.  The form must be posted at each establishment covered, in a conspicuous place where notices to employees are customarily posted.

Prior to posting, a company executive must review the OSHA 300A and certify that “he or she has examined the OSHA 300 Log and that he or she reasonably believes, based on his or her knowledge of the process by which the information was recorded, that the annual summary is correct and complete.”

Under OSHA’s rule, a company executive can be one of the following:  (1) an owner of the company (only if the company is a sole proprietorship or partnership); (2) an officer of the corporation; (3) the highest ranking company official working at the establishment; or (4) the immediate supervisor of the highest ranking company official working at the establishment.

OSHA can cite an employer who fails to post the OSHA Form 300A as required.  Employers should take steps now to ensure they are fully compliant.

Workplace Violence, Indoor Heat, Cannabis Regulations on Cal/OSHA 2018 Schedule

Starting the year with a bang, the Cal/OSHA Division said it intends to finalize several new standards this year, including on indoor heat illness prevention. It also intends to release new workplace violence prevention for general industries regulations and new regulations to affect the Cannabis industry. The agency has scheduled three advisory meetings within the next month.

Workplace Violence Prevention Plan for General Industries

In 2017, a rise in workplace violence incidents (including active shooter situations and theft) has OSHA pushing for a higher, heavily regulate standard to ensure that all employees are safe and to hold employers liable for preventable violence incidents. The expected workplace violence prevention standard for general industries likely will affect all employers, except the Department of Corrections and health care employers. The Cal/OSHA advisory board will accept comments starting at the January 25, 2018, hearing on this subject.

Cannabis Industry

By March 1, 2018, the Division of Occupational Safety and Health must convene an advisory committee to evaluate whether there is a need to develop industry-specific regulations related to marijuana use. The Division plans to have an advisory board to discuss the unique health and safety hazards faced by workers employed in the marijuana industry, including:

  • Exposure to second-hand marijuana smoke;
  • Potential risks of fire and explosions;
  • Potential risks of exposure to airborne contaminants;
  • Potential risks of armed robberies and other workplace violence issues; and
  • Repetitive strain injuries.

The advisory board will accept comments starting at the hearing on this subject, which is set for January 31, 2018.

Indoor Heat Illness

The indoor heat illness prevention plan standard likely will affect employers who operate an indoor facility that at any time may increase to above 80 degrees Fahrenheit. A non-exhaustive list of industries subject to this standard are kitchens, manufacturing, refineries, factories, retail, and other warehouses, and constructions sites. If your facility is not air-conditioned, this standard likely will apply to your workplace. The advisory board will accept comments starting at the hearing on this subject, which is set for February 8, 2018.

If you have concerns regarding these standards, please contact Jackson Lewis to discuss whether you should provide comments to the proposed regulations.

Vote On Scott Mugno to lead OSHA Delayed

A vote on Scott Mugno to become the head of OSHA has been postponed by the Senate Committee on Health, Education, Labor and Pensions (HELP). Mr. Mugno had already won approval by the committee on a straight-party line vote on December 13, 2017 but his nomination must be reconsidered since it was not confirmed by the full Senate before the end of last year’s term.

Mr. Mugno has been a safety executive with FedEx Ground since 2011 and has served as Chairman of Research Advisory Committee at American Transportation Research Institute since January 2017. His management background has raised concerns among some Democrats and labor advocates about his commitment to workplace safety and that he will take actions to weaken OSHA and roll-back enforcement.

Despite these concerns, the leadership vacuum coupled with a decline in the number of OSHA inspectors has made it crucial for Mr. Mugno to take control of OSHA to provide much needed guidance to the agency and employers. Once confirmed, Mr. Mugno will have to tackle a number of pressing issues such as setting budget and staffing levels, directing enforcement priorities and making policy changes, implementation of OSHA’s new electronic injury and illness reporting rules, and determining how new standards will be enforced such as those concerning silica exposure.

A new date and location for the vote has not been confirmed but should be rescheduled in the next few weeks.