On December 19, 2016, the Department of Labor’s Occupational Safety and Health Administration (“OSHA”) issued a final rule amending its record keeping regulations, located at 29 C.F.R. Part 1904. The Amendment clarifies that a covered employer has an on-going obligation to create and maintain accurate records of recordable work-place injuries and illnesses. It did so in response to the decision in AKM LLC v. Secretary of Labor, 675 F.3d 752 (D.C. Cir. 2012).

The Occupational Safety and Health Act (“Act”) requires covered employers to create and preserve records of certain workplace injuries and illnesses that are prescribed by the Secretary of Labor. Pursuant to this delegated authority, OSHA has issued regulations that require covered employers to record workplace injuries and illnesses on the OSHA 301 Incident Report form and on the OSHA 300 Log form, within seven days of learning of a recordable workplace injury or illness, to review the Log for accuracy at the end of each calendar year and to correct any deficiencies found during the annual review.  A covered employer must prepare, certify and post annual summaries of the recordable workplace injuries and illnesses that occurred during the previous year by February 1 and keep them posted until April 30.  OSHA regulations further require covered employers to maintain its Logs, Incident Report forms and annual summaries for five calendar years and to make this information available to its employees, OSHA, and the Bureau of Labor Statistics.  OSHA may issue citations for violations of the Act, but must do so within six months after “the occurrence of any violation.”  29 U.S.C. § 658(c). The new continuing obligation provides the basis for record-keeping violations to be timely years after a reportable incident under the rationale of the AKM case.

When this final rule becomes effective on January 18, 2017, covered employers will have a continuing obligation to create and maintain accurate records of recordable workplace injuries and illnesses and to update their records during the five year retention period.

To comply with OSHA’s amended regulations, employers should:
  • Ensure that it completed OSHA 301 Incident Report forms for all recordable workplace injuries and illnesses that occurred during the previous year and ensure that its OSHA 300 Log form accurately reports all recordable workplace injuries and illnesses and, if appropriate, update the Log with any recordable workplace injuries and illnesses not previously recorded.
  • Conduct an audit of its OSHA 300 Log forms for the past five years to confirm that they accurately reported all recordable workplace injuries and illnesses that occurred during the past five years. The audit should also include a review of the employer’s OSHA 301 Incident Report forms to ensure that the employer completed forms for each recordable injury and illness during the past five years.

On May 12, 2016, OSHA published significant amendments to its recordkeeping rule, requiring many employers to submit work-related injury and illness Recordkeepinginformation to the agency electronically.  The amendments also include provisions designed to prevent employers from retaliating against employees for reporting injuries and illnesses at work.  The information employers provide will be “scrubbed” of personally identifiable information and published on OSHA’s website in a searchable format.

The Basics

Every workplace with 250 or more employees will be required to electronically submit  OSHA 300 Logs, 301 Forms, and 300A summaries on an annual basis.  Workplaces with 20 or more employees in industries that OSHA has deemed hazardous and listed in the rule must submit OSHA 300A summaries to OSHA electronically on an annual basis as well.  The information kept in the logs and on the forms remains the same, as does the calculus for determining whether an injury or illness is a recordable.

The new requirements will be phased in, requiring employers to electronically submit their 300A summaries on July 1, 2017 and their 300 Logs, 301 Forms and 300A summaries on July 1, 2018.  State plans are required to adopt systems with the same deadlines.

The Problems

OSHA plans to rely upon computer software to remove personally identifiable information from these records.  The software will supposedly remove all of the fields that contain identifiers such as the employee’s name, address, and work title, and to search the narrative field in the form to ensure that no personally identifiable information is contained in it.  OSHA’s reliance on a computer system to detect every piece of identifiable information in a narrative is terribly risky and increases the potential for a data breach.

The publication of this information on a searchable database will allow the public, including the press, to seek out employers with what appear to be higher than average numbers of injuries and illnesses and continue the public shaming campaign so often relied upon by OSHA under the Obama administration.  The public dissemination of this information also simplifies the process of unionization, permitting unions to identify possible targets based on perceived unsafe working conditions.

Although there are already whistleblower protections in place to prevent retaliation by employers when employees report injuries and illnesses, the new rule includes a number of additional anti-retaliation protections, including a provision that dramatically limits an employer’s ability to test for drug use when an employee has been involved in an incident.  Under the new rule, post incident testing is to be limited to situations in which the possibility that the employee was impaired by drug use is quite likely to have contributed to the incident and for which the test can accurately identify impairment caused by drug use.  In many cases, such as when an employee may have been impaired by marijuana at the time of the incident, employers are essentially left with no ability to test as there are multiple ways to test for the presence of the drug in an employee’s system, but no established standard for what constitutes marijuana impairment.  This issue is increasingly important as states such as Colorado make recreational marijuana use lawful.

So What Should Employers Do Now?

  • Train employees on the new rules and when they go into effect.
  • Ensure that employees understand that they will not be retaliated against for reporting work-related injuries and illnesses and are, in fact, encouraged to report them.
  • Re-train the employee(s) responsible for injury and illness recordkeeping on the basics of recordkeeping and provide thorough training on the new rule with an emphasis on protecting personally identifiable information to the extent possible while remaining in compliance with the new regulatory requirements.
  • Review and revise drug testing policies to bring them into compliance with the requirements of the new rule.

On January 1, 2015, OSHA rolled out its Severe Injury Reporting Program, requiring all employers to report to OSHA within 24 hours any work-related amputations, inpatient hospitalizations, or loss of an eye.  The long standing requirement to report work-related fatalities to OSHA within 8 hours also remains in place.

According to a report issued by OSHA on January 17, 2016 evaluating the impact of the new reporting requirements, before the requirements were established, compliance officers were often dispatched to inspect a fatality in the workplace, only to discover a history of serious injuries had taken place there in the past, unbeknownst to OSHA.  The new reporting requirements were intended to enable the agency to better target enforcement efforts and engage more high-hazard employers in identifying and eliminating serious hazards.  “In case after case, the prompt reporting of worker injuries has created opportunities for us to work with employers we wouldn’t have had contact with otherwise,” said Assistant Secretary of Labor for Occupational Safety and Health David Michaels, who authored the report.  “The result is safer workplaces for thousands of workers.”

Making a severe injury or fatality report to OSHA does not necessarily result in a visit from compliance officers.  Rather, in 62% of the over 10,000 reports OSHA received this year, employers were instructed to investigate the incident themselves and produce to the agency a Rapid Response Investigation report in which the employer explains the root cause(s) of the incident that resulted in the severe injury and what the employer has done or plans to do to address the hazard(s) it has discovered.  OSHA intends to continue this practice, as it has proven effective, and is an efficient use of OSHA’s limited resources.

Although 10,000 severe injury reports in the first year (translating into about 30 fatalities or serious injuries per week) may seem like a large number, OSHA says it strongly believes that a substantial number of injuries that should have been reported were not.  The agency reached this conclusion by looking at a number of different factors including the number of injury claims submitted to state workers’ compensation programs, which indicated that employers may be underreporting to OSHA at a rate of over 50%.

Most of the reports that OSHA received this year were from large employers so OSHA believes the underreporting is caused by lack of awareness of the rule among small and mid-sized employers.  The agency intends to address this issue with a major outreach campaign this year which will be accomplished through efforts with insurers, first responders, and business organizations, among others.

There is also a concern that some employers are well aware of the rule but perceive the cost of not reporting as too low to be concerned about it.  OSHA warns in its report that with the new reporting requirements now in their second year, employers who have intentionally failed to report are far more likely to receive citations carrying penalties of up to $7,000 for failure to report, and those penalties will increase by approximately 80% when OSHA’s penalties are adjusted later this year.

After a year of OSHA’s promises that an online form for reporting work-related fatalities and severe workplace injuries was “coming soon,” the agency finally unveiled the form on its website on December 24, 2015.  The online form is one of three options that employers can use to fulfill updated fatality and severe injury reporting requirements, which went into effect on January 1, 2015 (see related story).  Employers also have the options of calling the OSHA office nearest to their worksite or calling the OSHA 24-hour hotline at 1-800-321-6742 (OSHA) to make a report.

The updated reporting rule requires all employers to notify OSHA when an employee is killed on the job or suffers a work-related hospitalization, amputation, or loss of an eye.  A fatality must be reported within 8 hours.  An in-patient hospitalization, amputation, or eye loss must be reported within 24 hours.

No matter the option an employer chooses to use in making a fatality or severe injury report, the employer must be prepared to inform OSHA of the following information:

  • business name;
  • names of employees affected;
  • location and time of the incident;
  • brief description of the incident;
  • additional information relevant to the incident;
  • the number of fatalities and/or injuries;
  • the object or substance that have caused the harm (if known);
  • whether the harm was a fatality, hospitalization, amputation, loss of an eye or some combination of these; and
  • the identity of a contact person and their phone number.

Since OSHA’s revised fatality and severe injury reporting rule went into effect on January 1, 2015 (see related story), employers have been deeply concerned that the agency would use information contained in Rapid Response Investigation Reports (RRIs) — required by OSHA in response to approximately 50% of the reports made this year — as the basis for issuing citations and fines.  This concern stems from the fact that when OSHA finds an employer’s RRI unsatisfactory, such as where the employer merely blames the victim or fails to provide what the agency determines is an adequate plan to address identified hazards, OSHA may determine that an inspection is in order.

Late last week, in an interview with Business Insurance Magazine, Assistant Secretary of Labor for OSHA, Dr. David Michaels, clarified that OSHA has never used information contained in a RRI to justify a citation or fine and it never will.  Dr. Michaels emphasized OSHA’s goal that employers feel confident that they can communicate openly with OSHA without repercussions, and that the agency is developing an official policy providing assurance that RRI information will not be used in issuing citations.  Rather, OSHA explained, if the agency chooses to inspect an employer’s workplace in relation to a RRI that the employer submitted, OSHA will use information gathered during the inspection, rather than information included in the RRI, to determine whether citations should be issued.

This move may have been motivated in part by OSHA’s concern that employers are underreporting injuries that should have been reported under the new rule.  The rule requires all employers to notify OSHA when an employee is killed on the job or suffers a work-related hospitalization, amputation, or loss of an eye.  A fatality must be reported within 8 hours.  An in-patient hospitalization, amputation, or eye loss must be reported within 24 hours.  OSHA anticipates receiving approximately 12,000 reports under the new rule by the end of the year, far less than agency officials believe should have been filed.  Issuing an official policy reassuring employers that submission of incident information in RRIs will not result in citations and fines could encourage more employers to come into compliance with the new reporting rule.

OSHA has been unable to increase the civil penalties it can impose when an employer is cited for a violation since 1990.  But that is all about to change.  Hidden within the Bipartisan Budget Act of 2015, signed by President Obama on November 2, 2015, is a provision requiring OSHA to significantly increase its civil penalties.  A one-time “Catch Up Adjustment” will be based on the percentage difference between the Consumer Price Index in October 2015 (to be released later this month) and October 1990 – resulting in a penalty increase of approximately 80%.  This means that the $7,000 cap on serious violations would grow to $12,600 and the $70,000 limit on willful and repeat violations would increase to $126,000.  Had OSHA applied this increase to fiscal year 2014 penalties, which totaled $143.6 million, the total would have jumped to $258.5 million.  After this initial adjustment is made, OSHA will be required to adjust penalties every year using the annual percentage increase in the Consumer Price Index.

Although the agency is not required to take the full penalty increase, it probably will.  OSHA has tried for years to convince Congress to increase the civil penalties the agency can impose when an employer is cited for a violation.  Most recently, on October 7, 2015, Assistant Secretary of Labor for OSHA, Dr. David Michaels, told a House subcommittee that the “most serious obstacle to effective OSHA enforcement of the law is the very low level of civil penalties allowed under our law, as well as weak criminal sanctions,” and that “OSHA penalties must be increased to provide a real disincentive for employers accepting injuries and worker deaths as a cost of doing business.”

The budget changes go into effect July 1, 2016 and the increased penalties will take effect by August 1, 2016 in all states regulated by Federal OSHA.  The law does not automatically apply to states regulated by State Plans, but since State Plan programs must be at least as effective as Federal OSHA, State Plans are likely to increase civil penalties as well.

This change adds yet another powerful weapon to OSHA’s growing enforcement arsenal.  OSHA under the Obama administration has made liberal use of the General Duty Clause, weighted inspections, and new reporting requirements – all of which have resulted is OSHA inspections of industries and employers that it has never targeted before.  Now more than ever, employers should be prepared for a potentially costly encounter with OSHA.

Employers are well-advised to:

  • Ensure that safety programs are comprehensive and up to date
  • Ensure that employees receive all necessary safety training, can demonstrate that they understood the training, and that all training is well-documented
  • Assess the workplace for hazards and address any identified hazards as quickly as possible
  • Talk with union representatives or employees at non-unionized facilities about their safety concerns and address any bona fide concerns as quickly as possible

Taking these steps will demonstrate the employer’s commitment to safety and help reduce the possibility of receiving what soon will be very costly OSHA citations.

Although OSHA’s new reporting rule has been in effect for almost seven months now, it has caused some major changes in the way that OSHA operates.  Since the new reporting rule went into effect on January 1, 2015, OSHA has received more than 5,000 reports of work-related deaths, inpatient hospitalizations, amputations, and losses of an eye.  As OSHA anticipated, compliance with the rule has focused the agency’s attention on industries and hazards that it had not focused on before.  For example, because of the unexpectedly high number of reports of amputations from supermarkets, OSHA issued a safety Fact Sheet last month focused on preventing cuts and amputations from food slicers and meat grinders.

Around 40 percent of the newly filed reports have prompted OSHA investigations.  Another 46 percent have resulted in what the agency refers to as a “rapid response investigation.”  In a rapid response investigation, OSHA contacts the reporting employer to learn more about the incident.  The agency often expects the employer to conduct its own investigation into the root cause of the incident, determine how to prevent similar incidents from happening in the future, and report these findings back to OSHA in about a week.

In cases where OSHA is dissatisfied with an employer’s response, such as reports that merely blame the victim, the agency may proceed to conduct its own inspection of the incident.  An important related issue has not yet been resolved by the agency—that is, whether statements made in the investigation report that will result from the employer’s root cause analysis will be used as admissions by OSHA in the event of an enforcement action.  Accordingly, now more than ever, it is vital for employers to understand how to conduct an effective root cause analysis and produce an effective investigation report that will help them prevent similar incidents from taking place in the future.

Root cause investigations are often conducted by an employee’s supervisor, but a more effective approach involves managers and employees working together, bringing a variety of perspectives to the investigation.  As noted above, employers should be wary of merely blaming the victim and should instead investigate the incident thoroughly, interviewing the injured employee and all witnesses and assuring them that they will not be retaliated against for speaking truthfully about the incident.  The scene of the incident should also be temporarily cordoned off to enable the investigation team to document the location and any objects that were involved in the incident.  When searching for the root cause of an incident, the investigator should always be asking “why?” For example, if a safety procedure was not followed, why was it not followed?  If inadequate training was involved, why had the problem not been identified before?  By asking enough whys, the root cause of the incident will eventually be revealed, enabling the employer to respond to the situation and minimize or eliminate the possibility of a similar incident occurring in the future.

When recording the findings of the root cause analysis, employers must be mindful to exclude hearsay or conjecture—the content of the report should be completely factual and should include as much of the following information as possible:

  • Background information, such as where and when the incident took place, who and what were involved, the victim’s role and actions, and everything learned from witness interviews
  • A full description of the incident, such as the sequence of events, the type of incident, any objects or machinery that were involved, and any unusual circumstances, such as adverse weather or equipment failure
  • An analysis of why the incident took place, based on everything that the employer discovered during the investigation
  • Recommended corrective actions that will prevent recurrences

By following these guidelines and ensuring that the recommended corrective actions are implemented, employers can improve employee safety and morale while reducing the risk that their investigation reports will result in an OSHA citation.

I recently authored Epstein Becker Green’s March issue of Take 5 in which I outline actionable steps that employers can take to improve safety and avoid costly OSHA citations. Take 5 banner

Following is an excerpt:

The Occupational Safety and Health Administration (“OSHA”) was created by Congress to ensure safe and healthful working conditions for employees. OSHA establishes standards and provides training and compliance assistance. It also enforces its standards with investigations and citations.

Although it’s impossible for employers to mitigate against every conceivable hazard in the workplace, there are five critical steps that every employer should take to improve safety in the workplace—and avoid costly OSHA citations. Read on for the steps:

  1. Conduct an Internal Safety and Health Audit Under Attorney-Client Privilege
  2. Create a Strong Safety Culture
  3. Ensure That Safety and Health Documentation Is Current and Well Communicated
  4. Train Employees in Safety and Health, Regularly and Comprehensively
  5. Protect Contractors and Temporary Workers, Too

Click here to read the full Take 5 online.

Valerie ButeraRetailers, get ready for OSHA’s revised recordkeeping and reporting rules, effective January 1, 2015.

As I note in my Act Now Advisory—“What Do OSHA’s Revised Recordkeeping and Reporting Rules Really Mean for Retailers?”—several additional retail industries will be required to keep records of serious occupational injuries and illnesses, and several are no longer subject to the rules. The new reporting requirements apply to all retailers, even those included in the exempt list.

See the advisory for more information – below is an excerpt of my tips for retail employers:

  • Train your safety and human resource professionals and your managers on the new reporting requirements.  Again, all retailers must promptly report to OSHA any fatalities, amputations, loss of eye incidents, or in-patient hospitalizations.
  • Be aware that you can report to OSHA by:
    1. Calling OSHA’s free and confidential number: 1-800-321-OSHA (6742)
    2. Calling your closest Area Office during normal business hours
    3. Using the new online form that will soon be available on OSHA’s website
  • If you have retail establishments in one or more of the jurisdictions with a state plan, contact the state plan’s office to determine when you must comply with the rule and if the state plans’ reporting rules have additional requirements.  OSHA has encouraged state plans to require compliance by January 1 but recognizes that not all plans will be able to do so.
  • Contact counsel for advice on how to best navigate an OSHA inspection to ensure your preparedness should OSHA decide to investigate the circumstances leading to a reportable injury or illness.
  • To the extent that any of these newly reportable incidents have taken place at any of your retail establishments in the past, review the details of the incident and audit that facility and others that you believe may pose safety concerns.  Identify safety hazards and address any possible health or safety hazards that you discover.
  • If you are among the newly identified retail industries required to complete OSHA’s injury and illness recordkeeping, seek assistance from counsel in navigating these very complex requirements.  Ensure that safety and human resource professionals in your organization are properly trained and fully understand how and when to record an occupational illness or injury in your OSHA logs.
  • Retailers that have already been subject to the recordkeeping standard should review their logs to spot potential trouble spots, and provide refresher training to safety and human resource professionals in order to help ensure full compliance with the rules.

See below for a recording of my recent webinar, “OSHA Forecast: Developments to Watch in 2015 and Beyond.”

As I discuss, in 2015, many more industries will for the first time be required by OSHA to record injuries and illnesses in the OSHA 300 Injury and Illness Recordkeeping log. The reporting of severe injuries or illnesses is also changing, and we anticipate a greater focus on enforcements and inspections.

Topics include:

  • Where we are now and the direction of OSHA in 2015
  • Recording and recordkeeping requirements
  • Whistleblowing and its impact on your business
  • Preparing for increased OSHA inspections of incidents
  • Rulemaking and potential changes in current programs
  • Ebola and other infectious diseases

The video is also available on Epstein Becker Green’s Youtube channelclick here to download the slides.