Kate O’Scannlain Confirmed for Solicitor

Kate O’Scannlain was confirmed as the Solicitor of Labor for the U.S. Department of Labor by the Senate on December 21, 2017.   O’Scannlain will serve as the Agency’s top lawyer, helping the Labor Department set the policy and enforcement agenda.  Prior to her confirmation, O’Scannlain was a partner at Kirkland & Ellis, LLP.

During her confirmation hearing, O’Scannlain recognized the challenging times that the American workforce faces and vowed to collaborate with career officials at the Labor Department and listen to all stakeholders before committing to any course of action. She testified that she would help further the Trump Administration’s Labor agenda, including job creation, advancing opportunities through apprenticeship and job-training programs, improving workplace safety, assisting veterans in finding work, and assuring work-related benefits and rights are protected.

O’Scannlain also noted during her confirmation hearing that the vast majority of employers want to comply with the law and that many employers spend a significant amount of money on compliance costs but that the rules and regulations are unclear and confusing. She testified that the laws “should not be a game of ‘gotcha’ or involve gamesmanship using novel legal theories.”  She committed to helping employers understand their obligations to their workforce and to reduce unnecessary redundancies in the law.

President Trump’s nominee to head OSHA—Scott Mugno—will need to be re-nominated by President Trump before the Senate can vote due to a Senate rule that all nominations are returned to the President at the end of the year if not confirmed.



OSHA Penalties Up To Adjust for Inflation

OSHA is beginning the New Year with higher penalties. Effective today, civil penalties for violations of OSHA standards and regulations increased to adjust for inflation. In a Federal Register notice issued today, the U.S. Department of Labor increased civil penalties for a variety of regulated areas, such as Immigration, Child Labor, Wage and Hour, MSHA and OSHA.  “The U.S. Department of Labor (Department) is publishing this final rule to adjust for inflation the civil monetary penalties assessed or enforced in its regulations, pursuant to the Federal Civil Penalties Inflation Adjustment Act of 1990 as amended by the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 (Inflation Adjustment Act). The Inflation Adjustment Act requires the Department to annually adjust its civil money penalty levels for inflation no later than January 15 of each year.”

OSHA penalties for other-than-serious, serious and failure to abate violations increased by $259 from $12,675 per violation to $12,934 per violation.  The penalty for willful and repeat violations increased from $126,749 to $129,336, an increase of $2, 587.  The new penalty increase is effective today and will apply to any citations issued today or through the remainder of 2018.

The 2018 maximum penalties are as follows:

  • Other-than-Serious: $12,934
  • Serious: $12,934
  • Repeat : $129,336
  • Willful: $129,336

The penalty increase applies to Federal OSHA states, however, OSHA expects that states operating their own occupational safety and health program will align penalty structures with Federal OSHA so that such programs are equally effective as Federal OSHA.


OSHA Considers Limiting Electronic Submission to 300A Forms Only

It may be back to the drawing board for OSHA.  OSHA had previously announced its intention to make changes to its 2016 Improve Tracking of Workplace Injuries and Illnesses regulation, but the recent Unified Agenda of Regulatory and Deregulatory Actions released December 14, 2017 provides some specific detail on what employers may expect as proposed changes to this regulation.

When OSHA initially proposed the Improve Tracking of Workplace Injuries and Illnesses regulation, employers voiced employee privacy concerns over the requirement (for establishments with 250 or more employees which were required to keep injury and illness records) to electronically submit to OSHA Forms 300, 301 and 300A.  OSHA originally intended to publish the data with the reassurance to employers that personally identification information (PII) would not be released.  The rationale for publishing the collected injury and illness data was that public exposure would result in improved safety and health.

In issuing the original regulation, OSHA stated its intention not to publish personally identifiable information (PII) included on Forms 300 and 301.  However, in this recent regulatory agenda OSHA has now admitted it cannot guarantee that PII will not be released.  If that is the case, the Agency will not make the information publicly available.  Consequently, the stated safety and health benefit in collecting the data no longer exists.  Therefore, OSHA proposes to limit the electronically collected information to the OSHA 300A Forms, which do not contain PII.    In the 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.

It appears OSHA will limit the electronic submission of injury and illness data to the 300A Form for all covered employers.  Additionally, OSHA will seek comment on the costs and benefits of adding the Employer Identification Number (EIN) to data.  This would allow OSHA to match its data to the Bureau of Labor and Statistics (BLS) Survey of Occupational Injury and Illness and would relieve employers of the burden of reporting to both OSHA and BLS.  OSHA is also seeking comment on “feasible alternatives” to its proposal.

We will update you as information becomes available.

OSHA Accepting Electronically Submitted 300A Forms Through December 31

Last week we reminded employers covered by the recordkeeping requirements in Section 1904 that December 15th was the deadline to electronically submit 2016 300A forms for certain employers.  In true holiday spirit, OSHA announced in today’s OSHA Quick Takes that it will continue to accept “2016 OSHA Form 300A data through the Injury Tracking Application (ITA) until midnight on December 31, 2017.”  Additionally, the Agency will not take enforcement action against those employers who submit their records during the two week period December 15-December 31.  However, “[s]tarting January 1, 2018, the ITA will no longer accept the 2016 data.”

So Happy Holidays from OSHA…if you haven’t done so yet (and if you are required to submit your 2016 300A form) then make sure to do so by December 31, 2017.

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.