OSHA Clarifies That Employers in State Plans Must Submit Injury & Illness Data

In a news release issued today, OSHA notified employers in state plans that they must submit their injury and illness data through OSHA’s portal even if their state has not yet adopted the new requirements of the “Improve Tracking of Workplace Injuries and Illnesses” regulation. According to OSHA,

“[the agency] determined that Section 18(c)(7) of the Occupational Safety and Health Act, and relevant OSHA regulations pertaining to State Plans, require all affected employers to submit injury and illness data in the Injury Tracking Application (ITA) online portal, even if the employer is covered by a State Plan that has not completed adoption of their own state rule.”

OSHA had previously required only employers in state plans that had adopted the new requirements of the regulation to submit their data to OSHA.  The news release went on to say,

An employer covered by a State Plan that has not completed adoption of a state rule must provide Form 300A data for Calendar Year 2017.  Employers are required to submit their data by July 1, 2018. There will be no retroactive requirement for employers covered by State Plans that have not adopted a state rule to submit data for Calendar Year 2016.

Further, OSHA has clarified that all covered employers are only required to submit their 2017 300A form by July 1, 2018.  The regulation, as promulgated, required those employers with 250 or more employees at each establishment to submit all their injury and illness recordkeeping forms –  300A, 300 Log and corresponding 301 Forms – by July 1, 2018 through the ITA online portal.   OSHA announced that the only data that employers are required to submit is the 2017 300A Form, this is for federal jurisdiction and state plans, irrespective of whether the state has adopted the new regulation.

OSHA’s ITA website has the following announcement:

Covered establishments with 250 or more employees are only required to provide their 2017 Form 300A summary data. OSHA is not accepting Form 300 and 301 information at this time. OSHA announced that it will issue a notice of proposed rulemaking (NPRM) to reconsider, revise, or remove provisions of the “Improve Tracking of Workplace Injuries and Illnesses” final rule, including the collection of the Forms 300/301 data. The Agency is currently drafting that NPRM and will seek comment on those provisions.

We anticipate that OSHA will revise the requirements for employers with 250 or more employees per establismment and simply require all covered employers to submit their 300A Form to OSHA on an annual basis.

OSHA Enforcement of Parts of Beryllium Rule Begins May 11

Employers must ensure they are in compliance with most of OSHA’s beryllium rule’s requirements for general-industry and with the PEL and STEL in construction and shipyard industries by May 11, 2018. 

The rule (29 CFR 1910.1024, 29 CFR 1915.1024, and 29 CFR 1926.1124), promulgated in January 2017, sets a new, lower eight-hour permissible exposure limit (PEL) of 0.2 micrograms per cubic meter and a new short-term (15-minute) exposure limit (STEL) of 2.0 micrograms per cubic meter.

OSHA will not enforce any other part of the construction and shipyard beryllium standards such as ancillary provisions (engineering controls and medical surveillance) in construction and shipyard operations until further notice. According to OSHA, these are subject to additional rulemaking.

Further, OSHA said the general-industry rule has been the topic of “extensive settlement talks” with several parties. Except for certain provisions requiring changing rooms and showers and some engineering controls, all aspects of the rule in general industry will be enforced beginning May 11, 2018. The changing rooms and showers provisions are effective on March 11, 2019, and requirements for engineering controls on March 10, 2020.

Please contact Jackson Lewis if you have any questions about the rule or would like compliance assistance.


Review Commission Requests Outside Comments From Interested Parties To Evaluate Workplace Heat Stress Case

The Occupational Safety and Health Review Commission (OSHRC) is reviewing OSHA’s use of the general duty clause to issue citations against employers for heat-related hazards that are likely to cause death or serious bodily harm to employees. OSHRC accepted for review the case of Secretary of Labor, Department of Labor vs. A.H. Sturgill Roofing, Inc. which upheld a general duty citation against an employer for not adequately implementing a heat illness prevention program and a violation of 29 C.F.R. § 1926.21(b)(2) for failing to provide adequate training to its employees for heat-related hazards.  The employer was issued these citations after an employee died following a heat stroke on his first day on the job.

The ALJ held that the company’s employees were exposed to heat-related illness hazards during the roofing project and that all of the working conditions taken together established the existence of a heat-related illness hazard. The ALJ noted that it was not reasonable for a roofing employer to rely solely on a generic heat index to determine if a heat hazard exists at its worksite and to only implement a heat-related safety plan at the “danger” level.

The employer appealed the case to the Review Commission contending that other unknown factors such as pre-existing medical conditions may have led to the employee’s heat illness. The employer also argued that the reported heat index on the day of the incident was only at the “caution” level and that the company provided basic heat safety and planning that would have been required at that level per OSHA guidance.  In addition, the employer argued that there is no set standard of what constitutes a violative condition since there is no specific standard that identifies the temperature level and working conditions that would have triggered a specific response.

On review, OSHRC has taken the unusual step of requesting amici briefs from interested parties on the issue of workplace heat stress violations under the OSHA’s general duty clause. Specifically, OSHRC is looking for more information on the following issues:

  • Whether an employer’s knowledge or lack of knowledge of its employees’ underlying health conditions or ages, and any legal restrictions upon the employer in obtaining such information, are relevant to the Secretary’s burden to establish a violation of the general duty clause in this case; and
  • Whether the judge miscalculated the heat index on the day in question and, if so, whether the Secretary established the existence of a hazard even if the heat index remained in the lowest “caution” quadrant.

OSHRC originally requested briefs addressing these issues to be submitted by April 30, 2018 but has extended the deadline two weeks to May 14, 2018.

As we await a decision from OSHRC and as the temperature rises during the summer months, employers are advised to carefully evaluate the need and appropriateness of a heat-related illness safety program for employees that may be occupationally exposed to heat stress hazards in the workplace.

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.