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
On November 21, 2014, the Department of Labor released its Agency Rule List, which provides the status of all rulemaking efforts at each of its agencies. OSHA dominated the list of regulatory activity in the Department, listing 26 regulations in the prerule, proposed rule, and final rule stages.
Of these 26 items, OSHA announced that …
By the national OSHA Practice Group at Epstein Becker & Green
As we closed the book on 2013 — a truly remarkable year of OSHA enforcement and regulatory activity — we look to the future, and think about what to expect from OSHA in 2014. Over the next couple of weeks, we will roll out what we believe are the 5 most significant OSHA developments to monitor in 2014.
If you are interested in how accurate our past predictions have been, take a look at these articles from December 2011 forecasting five OSHA developments for 2012 and from December 2012 predicting three developments from OSHA in 2013.
Without further ado, here are the 5 OSHA-related developments you should anticipate in 2014, so says the collective wisdom of the national OSHA Practice Group at Epstein Becker & Green:
1. A Busy OSHA Rulemaking Docket
Although OSHA enforcement has reached levels never seen before by every measure, rulemaking activity under the current Administration has been slow. During President Obama’s first term, OSHA identified numerous rulemaking initiatives in its periodic Regulatory Agenda updates, including rules for combustible dust, Crystalline Silica, Beryllium, and an Injury and Illness Prevention Program (I2P2) rule. All of these proposed rules, however, missed important rulemaking deadlines or were completely set-aside. We expect that to change in 2014 and for the balance of this Administration, as the OSHA leadership team will strive to leave their legacy.
Just as we saw OSHA deemphasize rulemaking in the year leading up to the 2012 Presidential election, we are already seeing signs of a typical post-election, second term, aggressive rulemaking calendar from OSHA. The first sign of the new rulemaking push could be seen in speeches by David Michaels, the Assistant Secretary of Labor for OSHA, who characterized the proposed I2P2 rule as his and OSHA’s “highest priority.” Second, OSHA recently issued its Fall 2013 Regulatory Agenda, which, as we expected, returned several rulemaking initiatives, including the I2P2 rule, from the backburner, where they were deposited prior to the 2012 Presidential Election, back to the active rulemaking calendar. Finally, OSHA has also introduced new rules, such as a proposed rule to require employers to proactively report to OSHA injuries and illnesses, not just record them on the 300 Log. Check out our article about a burdensome new Injury & Illness Reporting Rule advanced by OSHA. Other important rules in the proposed or pre-rule stage to monitor in the coming year include:
- Occupational Exposure to Crystalline Silica (comments and hearings coming due early in 2014)
- Request for Information about the Process Safety Management Standard (including a reevaluation of the exemption of above ground atmospheric storage tanks)
- Walking Working Surfaces and Personal Fall Protection Systems (now in the Final Rule stage)
- Review/Lookback of OSHA Chemical Standards (an effort to make wholesale changes to existing chemical exposure limits)
2. OSHA Will Focus on Temporary Worker Safety
The treatment of temporary workers is expected to become more significant as the Affordable Care Act (“ACA”) is implemented, particularly when the “Employer Mandate” kicks in. The ACA will require employers with 50 or more workers to provide affordable coverage to employees who work at least 30 hours per week. This will result in employers using more part-time workers and hiring more contractors; i.e., workers who will not be counted towards the 50-worker minimum for ACA coverage. Both qualities are commonly associated with “temporary workers.”
With an expected increase in the use of temporary workers, along with recent reports of temporary workers suffering fatal workplace injuries on their first days on a new job, OSHA will make temporary worker safety a top priority in 2014, and has already launched a Temporary Worker Initiative. OSHA’s stated goals for the Temporary Worker Initiative are to:
- Protect temporary workers from workplace hazards;
- Ensure staffing agencies and host employers understand their safety & health obligations; and
- Learn information regarding hazards in workplaces that utilize temporary workers.
To achieve these goals, OSHA is developing outreach materials (such as fact sheets and webpages), and will use a combination of enforcement and training, but based on OSHA’s track record, we expect this will involve mostly enforcement. OSHA’s director of enforcement programs already issued a memorandum to its Regional Administrators instructing them to increase efforts to investigate employers’ use and protection of temporary workers. This side of the Temporary Work Initiative is already showing results. In the last quarter of FY 2013 alone, OSHA issued citations at 262 worksites where temporary workers were allegedly exposed to safety and health violations. Additionally, OSHA has conducted more than twice as many inspections of staffing agencies this year as it did last year. This trend will undoubtedly continue in 2014, so it is critical for host employers and staffing agencies to understand the dividing line of responsibility for addressing hazards to which temporary workers are exposed.
3. Hazard Communication Comes Into Focus
December 1, 2013 marked the first key implementation deadline of OSHA’s Hazard Communication standard, which was recently amended to align with the United Nations’ Globally Harmonized System of Classification and Labeling of Chemicals.…
As the clock ticked down and the apple dropped to start a new year, many of us reflected on the year that had passed and our resolutions and New Year’s wishes for the upcoming year. Probably not many of you were thinking about your resolutions and New Year’s wishes as they related to everybody’s favorite regulatory agency, OSHA, so let us do that for you. Here are three New Year’s wishes about OSHA enforcement that the national OSHA Practice Group at Epstein Becker & Green hopes to see come true in 2014 for our clients and friends in Industry:
1. We wish for OSHA to drop or amend its proposed changes to the Injury & Illness Recordkeeping rule.
Late last year, OSHA proposed some major changes to its Injury and Illness Recordkeeping regulations. The proposed rule would transform the current Recordkeeping framework in which employers’ records of workplace injuries remained private to the employer unless: (i) OSHA requests them during an inspection at the workplace; or (ii) the employer receives a rare request for the recordkeeping data from OSHA or the Bureau of Labor Statistics in a special survey. Under the proposed rule, employers’ injury and illness data will become an open book, requiring the collection of larger amounts of data on work-related injuries and illnesses, as well as making much of that information public. Here are the major provisions of the proposed rule:
- Requirements for Large Employers: The new rule will require employers with 250 or more workers to submit to OSHA every quarter the individual entries on their OSHA 300 Logs and the information entered on each OSHA 301 Incident Report. OSHA would then post the data on its public website after redacting only injured employees’ identifying information.
- Requirements for Small Employers: The proposed rule would also require employers with 20 or more workers in designated industries to submit information electronically from their 300A Annual Summary forms to OSHA, which OSHA also intends to publicize.
We anticipate that the new reporting requirements and publication of employers’ injury records will significantly increase the burden on employers, both in man hours and cost, and will trigger significant unexpected implications for the regulated community, including: (i) extraordinary burden on employers to comply; (ii) more inspections and citations by OSHA; (iii) discourage employers from recording all recordable injuries; (iv) invasion of injured employees’ privacy; and (v) harm to employers’ reputations. The public perception of certain employers may be skewed because this reported information would be publicized. Specifically, under the proposed rule, OSHA would only make public the basic data provided in injury and illness recording forms. The public, therefore, could take the injury and illness data out of context, as the public would not be privy to the details behind injuries, safety measures employers adopt, how the data compares to industry averages, or any other relevant information related to the circumstances of the injury or illness. For more information about the proposed rule and its potential impacts, check out our article from last month.
Our New Year’s wish for the regulated community is that this rule not be implemented, or at least for the “publication” element of the rule to be stricken. OSHA is accepting public comments on the proposed rule as written and several alternatives published in the Federal Register. Considering the extensive impact the proposed rule will have on employers, industry participation in the comment stage of the rulemaking process, especially with the help of experienced OSHA counsel, will be essential in driving fundamental and necessary revisions to the proposed rule.
2. We wish for OSHA to change the way it implements the Severe Violator Enforcement Program to respect Constitutional Due Process.
As one would expect for a program designed for recidivists, the punitive elements of OSHA’s Severe Violator Enforcement Program (“SVEP”) are significant, including: (a) inflammatory public press releases branding employers as a “severe violators”; (b) adding employers’ names to a public log of Severe Violators; (c) mandatory follow-up inspections at the cited facilities; (d) numerous inspections (up to ten) at sister facilities within the same corporate enterprise; and (e) enhanced terms in settlements (such as corporate-wide abatement, requiring third party audits, etc.).
Our major frustration with the SVEP is not with the severity of the consequences, it is with the timing in which employers are “qualified” into the Program. As OSHA currently implements the SVEP, employers are qualified into SVEP before final disposition of the underlying citations. In other words, employers begin to face the harsh punishments before OSHA has proven that the employer violated the law at all, let alone in the egregious ways that qualify them for SVEP. We have written extensively about the SVEP here on the OSHA Law Update Blog. For more information, check out any of these articles.
Our New Year’s wish that OSHA amend the Severe Violator Enforcement Program to delay qualifying employers into the Program until the underlying qualifying citations become a Final Order of the OSH Review Commission. In the alternative, we wish for a Court to evaluate and strike down the Constitutionality of this element of SVEP.
3. We wish for OSHA to revisit its unlawful interpretation regarding participation in OSHA inspections by union representatives at non-union worksites.
Last year, OSHA issued a formal Interpretation Letter of its regulation governing who may participate in OSHA walkaround inspections (29 C.F.R. 1903.8(c) – Representatives of Employers and Employees).…
Last month, we published an article about OSHA’s proposed new Injury and Illness Recordkeeping and Reporting rule that would create a minefield for hundreds of thousands of employers nationwide. In a January 6, 2014 press release, OSHA announced that it would extend the comment period for this proposed rule by 30 days in response to a request from the National Association of Home Builders (“NAHB”). NAHB made the request because the rulemaking overlaps with the proposed crystalline silica rulemaking and it needed more time to disseminate the relevant information to its members and coordinate responses. March 8, 2014 is now the deadline by which all interested parties must submit comments
on the injury and illness recordkeeping and reporting rule, replacing the original deadline of February 8, 2014. For planning purposes, note that the new comment deadline is on a Saturday (likely because OSHA was looking at a 2013 calendar when setting it).
OSHA’s proposed rule lays out several major changes, including requiring employers to electronically submit to OSHA their injury and illness records, whereas the current rule require employers to maintain these records internally, and to share them only in very limited circumstances. That is hardly the most troublesome element of the proposed new rule, however. OSHA also intends now to broadcast the injury and illness information on a public website, for no legitimate safety reason. Indeed, OSHA has no reason to advertise employers’ injury and illness information other than for public shaming. Employers, therefore, are rightfully concerned about the rule.
Employers and trade associations have expressed a host of different concerns about the proposal to publicize injury and illness records:
- Employers fear that publicized injury and illness records will be mischaracterized, and employers’ public perceptions will be unjustly skewed. Without context as to how the injuries actually occurred and what safety measures the employer had implemented to prevent workplace injuries, the public could jump to incorrect and harmful conclusions about the employer.
- Unions will almost certainly use the out-of-context injury and illness information to mislead employees to facilitate organizing campaigns or to advance their interests in contract negotiations.
- The publication of injury data will likely discourage some employers from recording all injuries and illnesses, driving the precise opposite result OSHA was hoping to achieve.
- Publication of injury and illness records may also lead to disclosure of employers’ proprietary information as well as private health information of injured employees.
- OSHA’s publication of injury and illness records deliberately places fault for all injuries upon the employer, despite the express understanding during the rulemaking for the original Recordkeeping rule that the act of recording workplace injuries should not create any implication of fault. OSHA has recognized that many injuries and illnesses caused in the workplace are outside employers’ control. This proposal to publish the injury information, however, implies that all recorded injuries were the fault of the employer, because OSHA’s sole motivation for publishing the information is to hold employers accountable in the eyes of the public.
Employers have also presented concerns about the cost and burden of actually submitting the injury and illness information to OSHA electronically, as set forth in the proposed rule. The literature included with the proposed rule suggests that OSHA assumes a majority of employers already keep their injury and illness records electronically, so submission to OSHA should be doable without much extra time or expense. Most employers, however, particularly small businesses, still keep injury records in hard copy. Therefore, the time and expense to comply with the new rule will be far greater than predicted by OSHA, especially if the employer has 250 or more employees and, therefore, must submit records to OSHA four times every year.…
Last month, the Occupational Safety and Health Administration (“OSHA”) put out a press release announcing a proposed new rule that would significantly increase employers’ injury and illness recordkeeping and reporting responsibilities. OSHA first submitted its proposal to the Office of Information and Regulatory Affairs (“OIRA”) two years ago, on November 22, 2011, but OIRA did not approve the proposed rule to advance through the rulemaking process until last month.
In essence, the proposed rule would transform the current Recordkeeping framework in which employers’ records of workplace injuries remained private to the employer unless: (i) OSHA requests them during an inspection at the workplace; or (ii) the employer receives a rare request for the recordkeeping data from OSHA or the Bureau of Labor Statistics (“BLS”) for survey purposes.
Under the proposed rule, employers’ injury and illness data will become an open book, requiring the collection of larger amounts of data on work-related injuries and illnesses, as well as making much of that information public. Dr. David Michaels, the Assistant Secretary of Labor for OSHA, has expressed publicly that “[t]his is not an enforcement initiative,” but employers are rightfully concerned about the ramifications of this new proposed rule.
OSHA’s Current Reporting Practices
Currently, OSHA compels employers to report a workplace injury or illness to OSHA or to produce injury and illness recordkeeping data to OSHA or the BLS in only four circumstances:
- the injury or illness results in death or the overnight hospitalization for more than observation of three or more employees;
- the recordkeeping data (e.g., OSHA 300 logs, 300A Annual Summaries, or 301 incident reports) is requested or subpoenaed during an enforcement inspection by OSHA at the employer’s workplace;
- the recordkeeping data is requested pursuant to OSHA’s Data Initiative Survey specific to certain industries with high rates of occupational injuries and illnesses; and
- recordkeeping forms are requested by BLS for its Survey of Occupational Injuries and Illnesses, for which a select few representative employers are requested to participate each year.
In conjunction with the new rulemaking, OSHA claims that these four outlets for the Department of Labor to acquire injury and illness data are insufficient because the information is generally not collected timely, is too limited in scope, and is often not establishment-specific. OSHA believes that the proposed rule, detailed below, would resolve these so-called insufficiencies.
Provisions of the Proposed Rule
OSHA’s new Recordkeeping rule proposal contains three major provisions:
- Requirements for Large Employers (250+ Employees): If implemented, the new rule will require employers who had 250 or more workers (including full-time, part-time, temporary, and seasonal workers) at peak employment during the prior calendar year to submit to OSHA every quarter the individual entries on their OSHA 300 Logs and the information entered on each OSHA 301 Incident Report. OSHA would then post the data on its public website after redacting only injured employees’ identifying information. Employers will submit this information through a secure website using direct data entry into a template form or by uploading electronic documents already maintained by the employer. Approximately 38,000 private employers nationwide would be covered by this provision, and OSHA predicts the cost to each of these employers would be only approximately $183 per year.
- Requirements for Small Employers (20+ Employees): The proposed rule would also require employers with 20 or more workers in designated industries to submit information electronically from their 300A Annual Summary forms to OSHA, which OSHA also intends to publicize. Employers will submit this information through the same secure website using direct data entry or through a batch file upload. This portion of the proposed rule projects to impact approximately 441,000 employer establishments, and OSHA estimates the cost at only approximately $9 per employer per year.
- Requirements for All Employers: Under the proposed rule, any employer who receives notification of a request from OSHA must submit information from its injury and illness records (i.e., 300 Logs, 301 forms, and 300A Annual Summaries) for the time periods specified in OSHA’s notification. This provision only requires submission after notification by OSHA. Through this provision, OSHA intends to collect data specific to certain industries or hazards.
Dr. Michaels has stated that the information collected from employers through these three data-collection provisions will be used to help employers better identify and eliminate hazards, determine where OSHA’s consultation and educational resources should be focused, and direct inspection priorities. OSHA has also suggested that the proposed rule imposes only a slight burden on employers, because those subject to the proposed rule are already required to record the information now being demanded for production.
We anticipate, however, that the new reporting requirements and publication of employers’ records as set forth in the proposed rule will significantly increase the burden on employers, both in man hours and cost, and will trigger significant unexpected implications for the regulated community.
Top 5 Impacts to Industry From the Proposed Recordkeeping Rule
- Unforeseen (Grossly Underestimated) Costs of Compliance: We are deeply concerned about the inaccuracy of OSHA’s cost estimates around this rule. In addition to the burdensome steps outlined in the rule, the proposed rule will likely require employers to take additional steps outside of those described by OSHA to comply. For instance, …
In recent years, Cal-OSHA has taken an aggressive stance against exposing employees to potential heat illness, often citing employers and proposing significant penalties for failing to provide to employees who work in high heat conditions with adequate drinking water, shade, training, and/or cool-down periods. Furthermore, as noted by the California Supreme Court in Brinker v. Superior Court, monetary remedies for the denial of meal and rest breaks “engendered a wave of wage and hour class action litigation” when added to the California Labor Code more than a decade ago.
The California Legislature has brought these two trends together by amending California Labor Code Section 226.7 to include penalties for employers’ failing to provide “Cool Down Recovery Periods” (“CDRPs”) to prevent heat exhaustion or stroke. The requirement to provide CDRPs kicks in January 1, 2014, after which California employers will be required to pay a wage premium for failing to provide CDRPs to employees. This premium pay is akin to the premium pay already required for violations of California’s meal period and rest break laws. The amendment is sure to trigger substantial litigation in California, and cross over into Cal/OSHA enforcement as well.
California’s Heat Illness Prevention Statute
California employers have long been aware of California’s Heat Illness Prevention statute, Title 8 Section 3395(d), which obligates employers to provide training and access to shade and adequate drinking water for employees who work outdoors in high heat conditions. Pursuant to the Heat Illness statute, employers have also been required to maintain one or more shaded areas, with either open-air ventilation, forced ventilation, or forced cooling, and employers are required to allow employee access and encourage employees to access these shaded or cooled areas for cool down periods of no less than five minutes or as employees feel the need to do so. Historical Cal-OSHA Board decisions and Standard Board committee notes have refused to characterize these cool down periods as work-free breaks; i.e., employers may require employees to continue working during periods when they are in shade or air conditioned locations.
Although heat illness has been an enforcement focus across the country, Cal-OSHA is the only OSHA scheme that has its own Heat Illness specific standard. While federal OSHA has increased its use of the General Duty Clause to cite heat illness issues, Cal-OSHA has led the way in this enforcement space.
California Labor Code Section 226.7
Pursuant to California Labor Code section 226.7, employers are already required to pay a penalty of one hour of pay for any failure to provide a non-exempt employee with a meal period and an additional hour of pay for any failure to provide a non-exempt employee with a rest break. This law has produced numerous class action lawsuits throughout California. Under the recent CDRP amendment, any failure to provide a cool down recovery period will obligate the employer to pay the employee one additional hour of pay at the employee’s regular rate of compensation for each workday that a recovery period is not provided. Employers now face more than just serious citations under Section 3395(d), but also cited or sued by employees (or classes of employees) for failure to provide CDRPs pursuant to California Labor Code Section 226.7.
Pursuant to this statute, California employers have suffered through a barrage of wage and hour single plaintiff and class action lawsuits related to California’s meal and rest break requirements under Section 226.7. This recent history has shown that compliance with these work-free periods is difficult, and demonstrating compliance is even more so. More importantly, the potential penalties and civil judgments are extremely high.
The Amended Statute
On October 10, 2013, that changed. The California Legislature joined Cal-OSHA’s cause and signed a new bill into effect amending California Labor Code Section 226.7 to include penalties for failure to provide CDRPs. Section 226.7 provides in pertinent part:
If an employer fails to provide an employee a meal or rest or recovery period in accordance with a state law, including, but not limited to, an applicable statute or applicable regulation, standard, or order of the Industrial Welfare Commission, the Occupational Safety and Health Standards Board, or the Division of Occupational Safety and Health, the employer shall pay the employee one additional hour of pay at the employee’s regular rate of compensation for each workday that the meal or rest or recovery period is not provided.…
On Tuesday, December 3, 2013 at 3 PM (Eastern) / 2 PM (Central), Eric J. Conn, Head of the national OSHA Practice Group at Epstein Becker & Green will conduct a free webinar focused on OSHA’s enforcement landscape as it relates to work on top of rolling stock (specifically railcars) at grain elevator facilities. …
OSHA recently announced a campaign to raise awareness about the hazards likely to cause musculoskeletal disorders (MSDs) among health care workers responsible for patient care. Common MSDs suffered in the patient care industry include sprains, strains, soft tissue and back injuries. These injuries are due in large part to over exertion related to manual patient handling activities, often involving heavy lifting associated with transferring and repositioning patients and working in awkward positions.
“The best control for MSDs is an effective prevention program,” said MaryAnn Garrahan, OSHA’s Regional Administrator in Philadelphia. “[OSHA’s] goal is to assist nursing homes and long-term care facilities in promoting effective processes to prevent injuries.”
As part of the campaign, OSHA will provide 2,500 employers, unions and associations in the patient care industry in Delaware, Pennsylvania, West Virginia and the District of Columbia with information about methods used to control hazards, such as lifting excessive weight during patient transfers and handling. OSHA will also provide information about how employers can include a zero-lift program, which minimizes direct patient lifting by using specialized lifting equipment and transfer tools. Here is a resource regarding Safe Patient Handling from OSHA’s website.
Employers in the healthcare industries should be on high alert, because whenever OSHA provides information about hazards it believes are present, a focus on enforcement is soon to follow. This is particularly true when it comes to hazards for which OSHA has no specific standards or regulations, like ergonomics. In these circumstances, OSHA is limited in its enforcement to use of Sec. 5(a)(1) of the OSH Act – the General Duty Clause. The General Duty Clause is used by OSHA to issue citations in the absence of a specific standard, in situations where employers have not taken steps to address “recognized serious hazards.” Efforts like OSHA’s present campaign to advise healthcare employers about hazards in their workplaces, is OSHA’s way of making you “recognize” the hazard, so the Agency can more easily prove General Duty Clause violations.
Of course, there are plenty of other reasons that healthcare employers should take note of the rate of MSD cases in patient care work. …