Employers Activate Your HERO Act Plans! NY Commissioner of Health Issues NY HERO Act Designation for COVID-19

September 7, 2021

By Stephanie H. Fedorka

On Sept. 6, 2021, Gov. Kathy Hochul directed the NYS Commissioner of Health to designate COVID-19 as a highly contagious communicable disease that presents a serious risk of harm to the public health. The designation is official and available on the NYS Department of Health (NYSDOH) website.

Read More >> Employers Activate Your HERO Act Plans! NY Commissioner of Health Issues NY HERO Act Designation for COVID-19

Must an Employer Offer a Reasonable Accommodation if a Federal Safety Regulation Prohibits Such Accommodation? 

July 7, 2021

By Richard S. Finkel

In a decision of interest to New York State employers subject to federal safety regulations, the Second Circuit Court of Appeals recently answered that question in the negative. In Bey v. City of New York1, the Court concluded that where a federal safety regulation expressly prohibits a requested medical accommodation, that regulation trumps the requirements imposed by the Americans with Disabilities Act (the ADA) and Title VII and shields the employer from liability under those statutes. 

Read More >> Must an Employer Offer a Reasonable Accommodation if a Federal Safety Regulation Prohibits Such Accommodation? 

OSHA Releases COVID-19 Workplace Safety Rule for Health Care Employers

June 11, 2021

By Michael D. Billok and Nihla F. Sikkander

At long last, the Occupational Safety and Health Administration (OSHA) has finally released a COVID-19 standard that it has stated was coming since January. Healthcare employers will be required to abide by the new emergency temporary standard (ETS) published by OSHA (the last time OSHA issued an emergency standard was in 1983 to address asbestos exposure). The emergency workplace safety rule was published on OSHA’s website on June 10, 2021 and is effective immediately upon publication in the Federal Register. Voluntary guidance for other industries will follow.

Read More >> OSHA Releases COVID-19 Workplace Safety Rule for Health Care Employers

OSHA Issues Stronger Workplace COVID-19 Safety Guidance

February 9, 2021

By Nihla F. Sikkander

On Jan. 29, 2021, the Occupational Safety and Health Administration (OSHA) released updated guidance to assist most employers and workers with implementing a coronavirus prevention program and mitigating the risk of the spread of coronavirus. The guidance titled, “Protecting Workers: Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace” (Guidance) was prepared to comply with President Biden’s Executive Order issued on Jan. 21, 2021, directing the federal government to take “swift action to reduce the risk that workers may contract COVID-19 in the workplace.” 

Read More >> OSHA Issues Stronger Workplace COVID-19 Safety Guidance

The COVID-19 Pandemic: Recommendations for Employers

March 16, 2020

By Monica C. Barrett and Subhash Viswanathan

The COVID-19 pandemic has already caused severe disruption to many businesses across the country. Employers will be required to continue to monitor developments and adjust to changing circumstances in the coming weeks and possibly months. We provide the following recommendations for employers in dealing with the many employment-related issues that will inevitably arise.

Read More >> The COVID-19 Pandemic: Recommendations for Employers

OSHA Issues Proposed Rule on Electronic Recordkeeping Requirements

August 20, 2018

By Richard C. White

The Occupational Safety and Health Administration has issued a Notice of Proposed Rulemaking that would rescind the requirement for establishments with 250 or more employees to electronically submit information from OSHA Form 300 (Log of Work-Related Injuries or Illnesses) and OSHA Form 301 (Injury and Illness Incident Report).  The proposed rule leaves in place the requirement for such establishments to electronically submit information from OSHA Form 300A (Summary of Work-Related Injuries and Illnesses).  The proposed rule also requires these establishments to submit their Employer Identification Number (EIN) electronically along with their data submissions.

Read More >> OSHA Issues Proposed Rule on Electronic Recordkeeping Requirements

An Update on OSHA’s Electronic Injury and Illness Reporting Rules

July 18, 2017

By Michael D. Billok

We have received a number of questions about the current status of OSHA’s new electronic injury and illness reporting rule, upon which we have previously reported here and here.  There is, yet again, more to report!

First things first:  the implementation date of the rule has been delayed from July 1, 2017, to December 1, 2017.  The reason for the delay is to give the new administration an opportunity to determine whether any changes to the rule are warranted as well as to give employers time to familiarize themselves with electronic reporting.  The Department of Labor did seek additional comments as part of the process.  We will keep you posted regarding any further delays in the implementation of, or changes to, the rule.

Second, the rule will likely go into effect in some form:  OSHA announced that its website at which employers can submit their Form 300A electronically will be live as of August 1 here.  All employers must submit their 2016 Form 300A via the website before December 1, 2017.

What is the Current Status of OSHA's Injury and Illness Reporting Rule?

February 20, 2017

By Michael D. Billok

As we previously reported on this blog, OSHA recently made sweeping changes to its injury and illness reporting rule.  The agency delayed enforcement of the rule until December 1, 2016.  Many industry advocates were hoping for a reprieve, and several industry groups, including the Associated Builders and Contractors and the National Association of Manufacturers, had filed suit, seeking a preliminary injunction to prevent the rule from going into effect.  Unfortunately, the injunction was denied and the rule did go into effect on December 1.  However, the rule is still being challenged.  Interestingly, the incoming administration recently jointly filed a letter with the court along with the plaintiffs, stating that each side planned to move for summary judgment, strongly suggesting that the incoming administration has no plans to revise or revoke the rule. One of the more troubling aspects of the rule was not in the rule itself, but in the preamble to the rule -- OSHA's stated position that it would consider blanket rules that require drug testing of employees after any accident to be unreasonable, i.e., to discourage the reporting of injuries and illnesses.  Without announcement, OSHA issued guidance on its position late last year that should ameliorate employers’ concerns.  Simply put, employers do not have to have reasonable suspicion of drug use, but reasonable suspicion that drug use could have led to the accident causing illness or injury.  OSHA provides the following examples: "Consider the example of a crane accident that injures several employees working nearby but not the operator.  The employer does not know the causes of the accident, but there is a reasonable possibility that it could have been caused by operator error or by mistakes made by other employees responsible for ensuring that the crane was in safe working condition.  In this scenario, it would be reasonable to require all employees whose conduct could have contributed to the accident to take a drug test, whether or not they reported an injury or illness.  Testing would be appropriate in these circumstances because there is a reasonable possibility that the results of drug testing could provide the employer insight on the root causes of the incident.  However, if the employer only tested the injured employees but did not test the operator and other employees whose conduct could have contributed to the incident, such disproportionate testing of reporting employees would likely violate section 1904.35(b)(1)(iv). Furthermore, drug testing an employee whose injury could not possibly have been caused by drug use would likely violate section 1904.35(b)(1)(iv).  For example, drug testing an employee for reporting a repetitive strain injury would likely not be objectively reasonable because drug use could not have contributed to the injury.  And, section 1904.35(b)(1)(iv) prohibits employers from administering a drug test in an unnecessarily punitive manner regardless of whether the employer had a reasonable basis for requiring the test." So, if an employee on a scaffold dropped a piece of lumber, striking an employee below in an area the employee was allowed to walk, it would not be proper to test the employee below, but it would be proper to test the employee on the scaffold, because operator error -- and possible drug impairment -- could have contributed to the accident. It still remains to be seen whether this rule will be rescinded through the Congressional Review Act or vacated through the lawsuit filed in the Northern District of Texas, but in the meantime, employers should make sure their policies regarding injury and illness reporting comport with the new requirements.

OSHA Announces Feral Cats Are Not Vermin

October 13, 2016

By Patrick V. Melfi
On October 4, 2016, the Occupational Safety and Health Administration issued a press release and announced that it was proposing changes to 18 separate regulations “as part of an ongoing effort to revise provisions in its standards that may be confusing, outdated or unnecessary.”  A summary of the proposed changes can be accessed here.  The proposals run across a wide spectrum from the technical (i.e., allowing ex-rays to be maintained in digital format); to the procedural (i.e., making the process safety management standard the same for construction and general industry); to the completely understandable (i.e., eliminating any uses of employee social security numbers in exposure monitoring); to the somewhat odd (i.e., eliminating feral cats from the definition of “vermin” in the shipyard equipment regulation).  On the last point, the agency press release noted that “OSHA recognizes that feral cats pose a minor, if any, threat, and tend to avoid human contact, and OSHA proposes to remove the term ‘feral cats’ from the definition of vermin in the standard.”  The deadline for submitting comments to any of the proposals is December 5, 2016.

OSHA Penalties Increased in the Heat of August

August 9, 2016

By Michael D. Billok
Last November, we issued an update alerting readers of this blog that in last fall’s budget bill, the Occupational Safety and Health Administration had been given authorization to increase its penalties by up to 82%, to account for inflation for several decades.  In order to implement the increase, OSHA had to issue an interim final rule by July 1 that would go into effect by August 1.  As expected, OSHA has indeed taken advantage of this authorization to increase its penalties. As of August 1, OSHA’s new maximum penalty structure is as follows:
  • Other-than-Serious violation:  increased from $7,000 to $12,471;
  • Serious violation:  increased from $7,000 to $12,471;
  • Repeat violation:  increased from $70,000 to $124,709;
  • Willful violation:  increased from $70,000 to $124,709; and
  • Failure-to-Abate violation:  increased from $7,000 to $12,471 per day.
These penalties are a significant increase, and when these new maximum penalties are combined with OSHA’s new enforcement priorities, they may result in citations with total penalty amounts that are higher than previously common.

OSHA Makes Sweeping Changes to its Illness and Injury Reporting Rule -- What this Means for Employers

May 12, 2016

By Michael D. Billok
Most employers traditionally have had little to no interaction with the Occupational Safety and Health Administration (OSHA), the federal agency tasked with overseeing workplace safety.  Unless they were inspected by OSHA -- and the 35,820 inspections conducted in FY 2015 pales in comparison to the tens of millions of employers across the country -- most businesses, particularly smaller businesses, may have gone for many years without interacting with the agency.  But that is about to change. Currently, most employers other than those in partially-exempt industries are required to maintain injury and illness reporting records on a log (OSHA Form 300), with supporting documentation (OSHA Form 301, or other equivalent document such as workers compensation records).  Each employer then summarizes that information each year onto OSHA Form 300A, which the employer then posts at the workplace from February 1 to April 30.  Other than serious injuries such as amputations, fatalities, or accidents requiring hospitalization, which require more immediate reporting, employers have not been required to submit injury and illness data to OSHA.  Now, however, many businesses will have to submit injury and illness information periodically to OSHA electronically.  Not only that, but OSHA also will post this information online. The reporting changes affect businesses depending on their size and classification:
  • Businesses with 250 or more employees.  These businesses will have to submit the annual summary form 300A electronically by July 1, 2017; submit the Forms 300, 301, and 300A electronically by July 1, 2018; and then submit Forms 300, 301, and 300A by March 2 annually thereafter.
  • Businesses with 20-249 employees in “high-hazard” industries.  OSHA has compiled a long list of high-hazard industries, including but not limited to hospitals, nursing homes, long-term care facilities, agriculture, utilities, construction, manufacturing, grocery stores, department stores, transportation companies, that must also submit information electronically if they have 20-249 employees, albeit less information than larger businesses.  These businesses need only submit Form 300A by July 1, 2017 and July 1, 2018, and then continue submission of Form 300A each year by March 2 thereafter.
In determining business size, the final rule states:  “each individual employed in the establishment at any time during the calendar year counts as one employee, including full-time, part-time, seasonal, and temporary workers.” OSHA claims that Personally Identifiable Information will be removed before the data it receives is released on its web site, but OSHA’s stated reliance on software to perform this function has raised concerns with employers and privacy advocates alike.  Also, it is unclear as to what form OSHA’s online publication will take, and how third parties may seek to utilize this information. The above rule revisions represent a sea change in employers’ interaction with OSHA regarding injury and illness reporting.  But OSHA did not stop there.  OSHA also published changes in its final rule, effective August 10, 2016, that affect all employers, regardless of size:
  • Employers must establish a “reasonable” procedure for employees to report work-related injuries and illnesses, and inform employees of that procedure.  The rule states that “[a] procedure is not reasonable if it would deter or discourage a reasonable employee from accurately reporting a workplace injury or illness.”
  • Employers must inform employees of their right to report work-related injuries and illnesses free from retaliation.  OSHA has issued a Fact Sheet stating this obligation may be met by posting the “OSHA Job Safety and Health — It’s The Law” poster from April 2015 or later.
  • The rule also adds a provision prohibiting discrimination against an employee for reporting a work-related injury, filing a safety or health complaint, or asking to see the employer’s injury and illness logs.
These provisions have raised additional concerns for employers.  The rule regarding “reasonable” procedures is targeted at employers’ safety incentive plans.  If an employer has a safety incentive plan wherein employees get a bonus, or days off, or an award, if the employee, department, or company has a certain number of days without injury -- so the theory goes -- employees may be hesitant to report injuries and illnesses.  It is precisely these kind of incentive plans the new rule intends to eliminate.  In addition, Section 11(c) of the Occupational Safety and Health Act, which has certain requirements before OSHA can initiate enforcement action against an employer in federal district court, has been the exclusive provision for employees to make complaints about retaliation for exercising their rights under the Act.  To the extent that OSHA now intends to issue citations against employers under a different process -- and even if an individual employee has not alleged or filed a Section 11(c) retaliation complaint -- this will be another sea change in enforcement. The bottom line is this:  employers with 20 or more employees in “high-hazard” industries, and with 250 or more employees in all industries, will have to report their injury and illness information electronically by July 1, 2017, which will be made available to the public in some form with personally identifiable information about employees removed.  And, all employers, regardless of size, should review their handbooks, safety incentive plans, and incident reporting policies to ensure they provide a “reasonable procedure for employees to report work-related injuries and illnesses.”