On July 30, 2018, the Occupational Safety and Health Administration (“OSHA”) published a notice of proposed rulemaking aimed at rolling back electronic reporting requirements that were implemented under a rule issued during the Obama administration (“Electronic Reporting Rule”). The Electronic Reporting Rule required employers with 250 or more employees, as well as employers in high risk industries, to electronically submit OSHA Form 300A (annual summary of work-related injuries and illnesses) by the end of 2017, and OSHA Forms 300 (log of injuries and illnesses) and 301 (injury and illness incident reports) by July 1, 2018.

In general, OSHA previously obtained the information in each of the three forms on an ad hoc basis by requesting the forms from employers during on-site inspections. Under the Electronic Reporting Rule, OSHA sought to more formally gather and publicly disclose such injury and illness data by systematically collecting safety information from employers and posting it on OSHA’s website. Essentially, OSHA sought to compel compliance with safety regulations by publicly shaming employers through the disclosure of all injuries and illnesses occurring at an employer’s facilities—regardless of the circumstances underlying such incidents.

The Electronic Reporting Rule proved extremely unpopular with employers for a variety of reasons. Employers felt the wholesale public disclosure of this information would not accurately reflect the existence and effectiveness of safety programs in place at facilities or actual compliance with OSHA requirements. Many viewed the rule as a gift from the Obama administration to unions engaging in organizing campaigns and tort lawyers seeking to extract increased settlements. Within the employment community, there was also general skepticism that the rule was truly aimed at encouraging greater compliance and a belief that it would instead be used as an enforcement tool.

Employers also expressed concern regarding the probable disclosure of employees’ personally identifiable information and general medical information. OSHA Forms 300 and 301 require employers to include an employee’s name and address, date of birth, and description of the injury or illness, among other data. While claiming that it did not intend to disclose the personally identifiable information contained on OSHA Form 301, OSHA indicated that all fields on OSHA Forms 300 and 300A would be made publically available under the Electronic Reporting Rule.

Following the change in administrations, OSHA pushed back the initial deadline for employers to file the Form 300A and also indicated that it would likely seek to reconsider, revise, or remove provisions from the Electronic Reporting Rule in 2018. In May of this year, OSHA suspended the July 1, 2018 deadline for submitting OSHA Forms 300 and 301, and announced that it would not accept electronic submission of the forms from employers.

The announcement resulted in Public Citizen, a progressive consumer advocacy group originally founded by Ralph Nader, joined by two other public health groups, filing suit against OSHA in the U.S. District Court for the District of Columbia. In the lawsuit, the plaintiffs argued that OSHA violated the law by suspending the Electronic Reporting Rule’s July 1, 2018 deadline and sought to compel OSHA to implement and enforce all requirements of the rule.

Less than a week after the lawsuit was filed, on July 30, 2018, OSHA published a proposed rule that would rescind the requirement that employers electronically submit OSHA Forms 300 and 301. The proposed rule, however, would still maintain the requirement that employers with 250 or more employees electronically file Form 300A with OSHA. Thus, as the rulemaking process plays out, the deadline for electronic submission of OSHA Forms 300 and 301 remains suspended while the requirement to submit OSHA Form 300A remains in place. Regardless of any final changes to the Electronic Reporting Rule, employers still must maintain all three forms under existing requirements and produce the forms to OSHA upon request during inspections.

This week’s top story on Employment Law This Week: The Occupational Safety and Health Administration (“OSHA”) plans to roll back a controversial reporting rule initiated at the end of the Obama administration.

OSHA has proposed rescinding parts of a 2017 rule that requires companies with 250 or more employees to submit detailed reports on workplace injuries. OSHA says this move would protect employee privacy and reduce the burden for employers. Three organizations have filed suit over the proposed changes, saying that the data from the detailed reports helps improve workplace safety procedures.

Watch this week’s Employment Law This Week episode below.

Our colleagues, , at Epstein Becker Green, has a post on the Health Employment and Labor blog that will be of interest to many of our readers: “Healing the Healers: Preventing Workplace Violence in Health Care Settings.”

Following is an excerpt:

On April 17, the Joint Commission—a nonprofit organization that provides accreditations to health care organizations—issued a list of seven steps hospitals should take to improve safety and reduce the risk of workplace violence perpetrated by employees, patients, and visitors. While the seven steps are advisory rather than mandatory, health care organizations risk jeopardizing their accreditation status if they fail to take appropriate action in response to episodes of workplace violence.

The Joint Commission’s alert seeks to address what it characterizes as the prevalence of workplace violence in the health care industry, citing a 2015 report from the federal Occupational Safety and Health Administration (OSHA) suggesting that approximately 75% of workplace assaults reported annually occur in health care and social service. The Joint Commission suggests that health care workplaces are particularly susceptible to workplace violence because of the daily care of patients dealing with mental health issues. …

Read the full post here.

Our colleagues, , at Epstein Becker Green, has a post on the Health Employment and Labor blog that will be of interest to many of our readers: “Workplace Violence Prevention Plans Now Mandatory for California Hospitals and Skilled Nursing Facilities.”

Following is an excerpt:

With the passage of A.B. 30, California became the first state to require all acute-care hospitals and skilled-nursing facilities to develop and implement comprehensive workplace violence prevention plans. After years of wrangling with California’s Division of Occupational Safety and Health (“Cal OSHA”), the law became effective on April 1, 2018.

This statute was conceived by Cal OSHA, in conjunction with unions such as the California Nurses Association to address the high risk of workplace injuries faced by health care workers daily. Overall, health care workers suffer the greatest number of workplace injuries, with over 650,000 individuals injured each year. Violence in the health care industry, however, is historically underreported; one survey estimated that just 19% of all violent events are reported. …

Read the full post here.

Our colleague Steven M. Swirsky, a Member of the Firm at Epstein Becker Green, has a post on the Management Memo blog that will be of interest to many of our readers: “OSHA Withdraws ‘Fairfax Memo’ – Union Representatives May No Longer Participate in Work Place Safety Walkarounds at Non-Union Facilities.”

Following is an excerpt:

On April 25, 2017, Dorothy Dougherty, Deputy Assistant Secretary of the Occupational Safety and Health Administration (“OSHA”) and Thomas Galassi, Director of OSHA’s Directorate of Enforcement Programs, issued a Memorandum to the agency’s Regional Administrators notifying them of the withdrawal of its previous guidance, commonly referred to as the Fairfax Memorandum, permitting “workers at a worksite without a collective bargaining agreement” to designate “a person affiliated with a union or community organization to act on their behalf as a walkaround representative” during an OSHA workplace investigation. …

Read the full post here.

A United States District Court in Texas has refused to dismiss a law suit challenging OSHA’s practice of allowing union representatives and organizers to serve as “employee representatives” in inspections of non-union worksites. If the Court ultimately sustains the plaintiff’s claims, unions will lose another often valuable organizing tool that has provided them with visibility and access to employees in connection with organizing campaigns.

The National Federation of Independent Business (‘NFIB”) filed suit to challenge an OSHA Standard Interpretation Letter (the “Letter”), which sets forth the agency’s position that an employee of a union that does not represent the workers at the site may accompany the OSHA representative conducting an inspection. The Federation argued on behalf of itself and one of its members because OSHA had permitted a representative of the Service Employees International Union (“SEIU”) to accompany him despite the fact the SEIU did not represent the workers at the facility. The lawsuit asserts that in allowing this, OSHA had violated its own rules and gave the union rights that it did not have under the law. In the Letter, issued in February 2013, OSHA gave a new definition of “reasonably necessary,” which supported its holding, for the first time, that a third party’s presence would be deemed “reasonably necessary,” if OSHA concluded that the presence of the third party “will make a positive contribution” to an effective inspection. The NFIB’s lawsuit contradicted both the OSHA statute itself and OSHA regulations issued in 1971 following formal rulemaking.

While OSHA asked the Court to dismiss the lawsuit, claiming that the NFIB lacked standing to bring the lawsuit because it could not demonstrate that it had been harmed, and that the lawsuit was procedurally flawed for a number of other reasons as well, Judge Sidney A. Fitzwater denied the U.S. Department of Labor’s Motion to Dismiss, finding that “NFIB as stated a claim upon which relief can be granted,” and that “the Letter flatly contradicts a prior legislative rule as to whether the employee representative” in such a walk-around inspection “must himself be an employee.”

The rule Judge Fitzwater referred to, 29 U.S.C Section 1903.8(c) contained OSHA’s policies for what are referred to as “safety walk-arounds,” which are on site workplace inspections. The Letter gives employees in the workplace the right to have a representative present during such an inspection. OSHA’s own rules make clear that such “authorized representative(s) shall be an employee(s) of the employer,” but that when “good cause is shown why accompaniment by a third party who is not an employee of the employer (such as an industrial hygienist or a safety engineer) is reasonably necessary to the conduct of an effective and thorough physical inspection of the workplace, such third party may accompany the Compliance Safety and Health Officer during the inspection.” (emphasis added)

If the ultimate outcome of the case, which seems likely, is a finding that OSHA does not have the authority to permit union representatives to participate in OSHA inspections of workplaces where they do not represent the workers, the effect would be to deny unions a potentially potent tool for organizing. As Judge Fitzwater described in his Memorandum and Order, unions such as the UAW in its ongoing organizing campaign at Nissan in Tennessee have come to rely upon participation in OSHA inspections as a valuable tool.

While it is too soon to say whether the Department of Labor will continue to defend the 2013 Letter and the position that OSHA has the right to permit union representatives to participate in safety and health inspections, Judge Fitzwater’s denial of the motion to dismiss raises serious doubt as to the long term viability of OSHA’s position.

On January 13, 2017, the Occupational Safety and Health Administration (“OSHA”) issued non-binding recommendations to aid employers with creating new or improving existing workplace anti-retaliation programs.  OSHA’s recommendations apply to all public and private employers that are subject to the 22 whistleblower protection statutes that OSHA enforces.[1]

Under the various federal whistleblowing protection statutes, employers are prohibited from retaliating against employees who report or raise concerns about workplace health and safety issues. OSHA encourages employers to create and maintain an effective workplace anti-retaliation program so they will not only comply with federal whistleblowing protection laws, but also create a workplace culture that prevents retaliation, improves employee morale and protects employers and members of the public from harm.

According to OSHA, an effective anti-retaliation program must: (1) prevent retaliation and address retaliation complaints; and (2) receive and respond appropriately to employee compliance concerns. OSHA cautions employers that an anti-retaliation program must not discourage or prevent employees from exercising their rights to report violations or file complaints about hazardous workplace conditions or potential violations of the law with OSHA or any other government agency.

OSHA recommends that an effective anti-retaliation program should include the following five key components:

  • Management leadership, commitment, and accountability
  • System for listening to and resolving employees’ safety and compliance concerns
  • System for receiving and responding to reports of retaliation
  • Anti-retaliation training for employees and managers
  • Program oversight

OSHA discusses each of these five key components in detail and offers helpful tips on how to incorporate them into an anti-retaliation program. Employers would be wise to compare their anti-retaliation program with OSHA’s recommendations to determine if any adjustments should be made to their program.

[1] The 22 whistleblowing protection statutes that OSHA enforces are listed at the end of the guidance.

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.

Federal Guidance for Employers and Workers on Exposure to Zika VirusThe Occupational Safety and Health Administration (OSHA) and the National Institute for Occupational Safety and Health issued interim guidance on April 10, 2016, for protecting outdoor workers who may be exposed on the job to mosquitos and healthcare and laboratory workers exposed on the job to body fluids of individuals infected with Zika virus.  Although the guidance is not a standard or regulation, employers should be mindful that OSHA can always issue citations under the General Duty Clause (OSHA’s catch all provision requiring all employers to provide employees with safe workplaces and safe work) should the agency find that an employer did not take sufficient precautions to protect employees from the virus.

Employers with outdoor workers, including seasonal retail lawn and garden workers in areas affected by the Zika, and workers in the healthcare industry should consult the guidance for information about the risk of exposure and effective worker protections.

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.