OSHA Changes Reporting Requirements for Work-Related Accidents

September 15, 2014

By Michael D. Billok
On September 11, 2014, the U.S. Department of Labor, Occupational Safety and Health Administration ("OSHA"), announced a final rule amending its injury and illness recording and reporting requirements.  Although the rule has not yet been published in the Federal Register, it has been submitted for publication.  The final rule will be effective on January 1, 2015. The most notable change in the rule pertains to the reporting requirement for hospitalizations following work-related accidents.  Under the current rule in effect until December 31, 2014, an employer must report an “in-patient hospitalization of three or more employees as a result of a work-related incident” within eight hours.  Under the proposed rule, an employer must report an “in-patient hospitalization of one or more employees or an employee’s amputation or an employee's loss of an eye, as a result of a work-related incident” within 24 hours.  The rule also provides another means (besides calling the OSHA Area Office or the 1-800-321-OSHA hotline) for reporting a fatality or hospitalization:  electronic submission through a web portal at www.osha.gov.  There is also one important distinction:  “in-patient hospitalization” in the revised rule is defined as “formal admission to the in-patient service of a hospital or clinic for care or treatment”; the preamble to the rule makes clear that if the admission is for observation or diagnostic testing only, it is not required to be reported.  The requirement to report fatalities within eight hours remains unchanged under the revised rule. The rule also amends the list of industries that do not need to keep injury and illness records unless otherwise informed by OSHA or the Bureau of Labor Statistics.  The revised list can be found in the amendment to the Non-Mandatory Appendix A to Subpart B of Part 1904 in the final rule.  Employers with ten or fewer employees still need not keep injury and illness records unless otherwise informed by OSHA or the Bureau of Labor Statistics.  All employers, regardless of size or industry, must comply with the 8/24 hour reporting requirements for work-related fatalities, hospitalizations, amputations, or loss of an eye as set forth in the rule.

OSHA Issues Policy Background on the Temporary Worker Initiative

August 5, 2014

By Patrick V. Melfi
On July 15, 2014, the Occupational Safety and Health Administration ("OSHA") issued a policy memorandum to its Regional Administrators, explaining in greater detail the agency’s Temporary Worker Initiative ("TWI").  The TWI, which was launched on April 29, 2013, is an initiative intended to prevent work-related injuries and illnesses among temporary workers.  Employers who have temporary employees hired through staffing agencies should be aware that OSHA has a particular focus on the health and safety of those temporary employees, and should ensure that those temporary employees are provided with proper protective equipment and training to minimize any potential workplace hazards. Perhaps the most interesting portion of the memorandum is the agency’s explanation that “in general, OSHA will consider the staffing agency and host employer to be ‘joint employers’ of the workers in this situation” and, thus, that both employers will be responsible for protecting the safety and health of the worker.  OSHA noted that these “obligations will sometimes overlap” and that -- depending on the circumstances of any violations of the Act -- the agency will “consider issuing citations to either or both of the employers.”  Notably, while the memorandum states that a host employer will normally have “primary responsibility for determining the hazards in their workplace and complying with worksite-specific requirements,” it adds that the temporary agency or staffing firm also has a “duty to diligently inquire and determine what, if any, safety and health hazards are present at their client’s workplaces.”  The memorandum includes the following example:  “If a staffing agency is supplying workers to a host where they will be working in a manufacturing setting using potentially hazardous equipment, the agency should take reasonable steps to identify any hazards present, to ensure that workers will receive the required training, protective equipment, and other safeguards, and then later verify that the protections are in place." The memorandum indicates that additional bulletins and a compliance directive regarding the TWI will be issued.

Recent OSHA Activity Underscores Attention to Whistleblower Statutes

March 31, 2014

By Michael D. Billok
In August of 2011, a former employee of DISH Network filed a complaint with OSHA that DISH had “blacklisted” him.  Specifically, the complainant alleged that DISH had given him a negative job reference, and had refused to do business with the complainant’s subsequent employers.  What was the alleged reason for the “blacklisting”?  The employee, who worked in the marketing department in New York, had reported possible financial fraud to his superior in 2008, and the employee contended the actions against him by DISH -- a publicly traded company -- amounted to retaliation for his reporting the fraud, in violation of the Sarbanes-Oxley Act.  Earlier this month, OSHA completed its investigation, finding merit to the employee’s complaint, and ordering hefty fines of over $250,000 against DISH:  $157,024 in back wages, $100,000 in compensatory damages, and attorneys’ fees.  DISH has 30 days to file an appeal before an Administrative Law Judge. We highlight this recent decision because it is not widely known that OSHA is the agency tasked with investigating whistleblower provisions in twenty-two different laws, ranging from the Occupational Safety and Health Act itself, to the Surface Transportation Assistance Act and even the Affordable Care Act.  Thus, for example, an employer can be subject to a whistleblower investigation and an order from OSHA if it retaliates against an employee for participating in activities protected by these laws, such as complaining about workplace safety, reporting driving a commercial motor vehicle longer than allowed by law, or receiving a subsidy under the Affordable Care Act.  When OSHA completes a whistleblower investigation in which it finds merit or after which it files suit in federal court, it has historically issued a corresponding press release as it did regarding the DISH decision.  For an example of a press release announcing a lawsuit, see this link. A complete list of laws with whistleblower provisions subject to enforcement by OSHA is available here.  Employers are well advised to review the list and their policies, and to provide training to their managers and supervisors who make employment decisions, in order to ensure compliance with any applicable whistleblower provisions.

OSHA Proposes Electronic Record-Keeping Requirements - November 2013

November 14, 2013

By Patrick V. Melfi

On November 8, 2013, the Occupational Safety and Health Administration ("OSHA") released a proposed rule which would require many employers to submit injury and illness records -- such as the OSHA Forms 300, 300A, and 301 -- electronically.  The proposed rule, along with the commentary, can be accessed here. The proposed rule -- which would amend 29 C.F.R. Section 1904.41 -- entails three significant provisions:

  1. Establishments with 250 or more employees would be required to submit the OSHA Forms 300 and 301 electronically on a quarterly basis and the OSHA Form 300A summary electronically on an annual basis.
  2. Establishments with 20 or more employees in several specific industries would be required to submit the OSHA Form 300A summary electronically on an annual basis.  The specifically-referenced industries in the proposed rule include the following general NAICS classifications:  construction, manufacturing, agriculture, utilities, hospitals, and nursing homes.
  3. Employers would have to submit electronic injury and illness records "upon notification" by the agency.

OSHA's stated reason for the proposal is that the agency presently has limited access to establishment-specific injury and illness records (i.e., the most common way it acquires this information is through inspections).  According to the agency, the on-line submission of the information will make it easier for OSHA to identify and address recurring health hazards in the workplace. The proposed rule provides that OSHA will be responsible for creating a secure website for affected employers to submit the required information, including log-in IDs and passwords.  While the agency has made it clear that it intends to make information submitted by employers public, the commentary to the rule makes it clear that no employee-specific information would be released (e.g., names, personal identifying information, etc.). Comments to the proposed rule must be received by February 6, 2014.

OSHA Announces Intent to Concentrate on Temporary Workforce and Staffing Agencies

July 3, 2013

By Patrick V. Melfi

The Occupational Safety and Health Administration ("OSHA") issued a new policy in April of 2013 focused on protecting temporary workers.  In a memorandum that was issued to all OSHA Regional Directors, the agency explained that the policy was needed because there were several 2013 workplace fatalities involving temporary workers who had not received adequate training.  Going forward, all OSHA investigators have been instructed that they need to “determine within the scope of their inspections whether any employees are temporary workers and whether any of the identified temporary employees are exposed to a violative condition.”

OSHA’s new policy does not appear to be a dramatic or drastic change in the agency’s direction at this time.  Employers who employ temporary workers through staffing agencies have always had -- and will continue to have -- an obligation to ensure that those workers are correctly trained and protected from workplace hazards (e.g., personal protective equipment, lockout/tagout, and HazCom, to name just a few).  Similarly, staffing agencies who have absolutely no supervisory role over employees or any control over the workplace at issue would not appear to be subject to citations under OSHA’s multi-employer worksite doctrine.  However, OSHA’s initiative seemingly includes a desire to place an affirmative “due diligence” obligation on staffing agencies to know what tasks their employees will be performing after being assigned to an employer and/or what safety hazards they might be exposed to.  At this point, OSHA has not explained exactly what such a “due diligence” obligation might include.

If and when the agency provides additional guidance, we will report it on this blog.

OSHA States That Employees at Non-Union Workplaces May Bring Union Representatives Along During Inspections

April 29, 2013

By Michael D. Billok

The effect of an interpretation letter publicly released by the Occupational Safety and Health Administration ("OSHA") on April 5, 2013 is quite concerning.  In that recent interpretation letter, OSHA states that employees at non-union workplaces may designate a union representative to accompany OSHA's Compliance Safety and Health Officer during inspections.  This interpretation seems to be inconsistent with the specific language of the regulation governing designation of employer and employee representatives during OSHA inspections, and marks a significant change in the manner in which OSHA has historically applied that regulation.

The regulation addressed in the interpretation letter, 29 C.F.R. Section 1903.8, provides that "[a] representative of the employer and a representative authorized by his employees shall be given an opportunity to accompany the Compliance Safety and Health Officer during the physical inspection of any workplace for the purpose of aiding such inspection."  The regulation further provides that "[t]he representative(s) authorized by employees shall be an employee(s) of the employer."  (emphasis added).  There is one exception to this rule.  If, in the judgment of OSHA's Compliance Safety and Health Officer, there is good cause to believe that the presence of a third party who is not an employee of the employer is "reasonably necessary to the conduct of an effective and thorough physical inspection of the workplace," the Compliance Safety and Health Officer may permit the third party to be present during the inspection.

The examples cited in the regulation of third parties who may be reasonably necessary to the conduct of an effective and thorough physical inspection of the workplace are industrial hygienists and safety engineers.  Under appropriate circumstances, one can understand why a subject matter expert may be permitted to be present during an inspection.  However, OSHA's recent interpretation letter goes far beyond the text of the regulation to state that "a person who is affiliated with a union" who is not an employee of the employer (i.e., a union organizer) may serve as the representative of the employees during an inspection even in a non-union workplace.

Based on the plain text of 29 C.F.R. Section 1903.8, a union organizer who is not employed by the employer should not be permitted to participate in an OSHA inspection at a non-union workplace.  Thus, it appears that OSHA has gone far afield in its recent interpretation letter.  Although the agency will enforce OSHA regulations according to its own interpretations of those regulations, courts have sometimes refused to adopt OSHA's interpretations of its regulations, either because those interpretations are at odds with the plain language of the regulations or because the interpretations are really new regulations that should have been subject to public notice and comment before promulgation.  It remains to be seen whether this interpretation will be challenged in court.

HazCom 2012: OSHA's Revised Hazard Communication Standard

February 27, 2013

By Patrick V. Melfi

In March of last year, the Occupational Safety and Health Administration (OSHA) published a final rule (HazCom 2012) aligning its Hazard Communication Standard (HCS) with the United Nations’ Globally Harmonized System of Classification and Labeling of Chemicals (GHS).

By way of background, OSHA’s HCS requires chemical manufacturers and distributors to assess the hazards of chemicals they produce or import and to subsequently provide product labels and safety data sheets conveying that information to downstream users of the chemicals, such as employers.  The HCS also requires employers to make these labels and safety data sheets available to its employees at the workplace.

The inconsistencies between the HCS and the GHS required manufacturers to produce different labels and safety data sheets for the same product when it was marketed in different countries.  OSHA’s modifications to the HCS in HazCom 2012 were intended to reduce these inconsistencies.  Major changes under HazCom 2012 include:  (1) revised criteria for classifying chemical hazards; (2) revised labeling requirements; and (3) a new 16-section format for safety data sheets.

Recognizing the practical difficulties in adapting to these significant changes, HazCom2012 allows a lengthy phase-in compliance period for manufacturers, distributors, and employers.  Manufacturers and distributors must be in full compliance by June 1, 2015, except that they may ship materials with old HCS labels until December 1, 2015.  Meanwhile, employers have until June 1, 2016 to update all labels and safety data sheets in the workplace.  However, employers must provide training to their employees on the updated labels and data sheets by December 1, 2013.

Although conducting training is the only formal requirement for employers until 2016, it is advised that employers take the following steps now to ensure a smooth transition:

  • Make note of materials stored in your workplace with outdated labels and safety data sheets, and attempt to deplete and turn over these materials in a practical yet timely manner.
  • Instruct employees (especially those involved in purchasing) to be on the lookout for updated safety data sheets.
  • Request updated data sheets from manufacturers and distributors or information regarding their plans/timetable for updating their materials.

For more information on HazCom 2012, OSHA has provided a detailed information page addressing the new regulations, available here.

Appeals Court Holds That Six-Month Statute of Limitations Applies to OSHA Record-Keeping Violations

May 8, 2012

By Michael D. Billok

In an extremely important decision for employers, the United States Court of Appeals for the D.C. Circuit held that an employer can only be cited by OSHA for up to six months following the occurrence of an error or omission in its injury and illness record-keeping logs.  In so holding, the Court restored the plain text of the Occupational Safety and Health Act (the "Act"), which provides that "no citation may be issued . . . after the expiration of six months following the occurrence of any violation."  OSHA regulations require employers to maintain their injury and illness logs for five years from the end of the calendar year that those records cover.  Relying on that regulation, OSHA had a longstanding practice of issuing citations up to five years following an alleged record-keeping violation.  For the first time, an appeals court held that this practice is contrary to the explicit statute of limitations contained in the Act.

The Court's decision was unanimous, and none of the judges thought very highly of OSHA's arguments to extend the statute of limitations to five years for record-keeping violations.  The Court stated that OSHA was "heroically attempt[ing]" to "tie this straightforward issue into a Gordian knot," and was "kick[ing] up" a "cloud of dust . . . in an effort to lead us to [the Secretary of Labor's] interpretation."

While employers may still be cited beyond the six-month statute of limitations if violations are continuing or ongoing, this decision will have a significant impact on OSHA's enforcement of employers' record-keeping obligations.  OSHA has 90 days from the date of the decision to file a petition for writ of certiorari to the Supreme Court if it wishes to appeal the Court's decision.

OSHA Announces National Emphasis Program for Inspecting Nursing Homes and Residential Facilities

April 6, 2012

By Michael D. Billok

On April 5, the Occupational Safety and Health Administration ("OSHA") announced a new National Emphasis Program ("NEP") for inspecting nursing homes and residential facilities.  This is an important announcement, because for most employers, there are only a few reasons why OSHA may inspect an employer's worksite:  (1) the worksite's injury and illness rate places it within OSHA's Site-Specific Targeting program; (2) the occurrence of a work-related accident that causes a fatality or hospitalizes three or more employees; (3) a referral from another law-enforcement agency; (4) an inspector withesses a possible violation in "plain view" or from media reports; (5) an employee complaint; or (6) a follow-up from a previous inspection.

However, OSHA also has the authority to create regional and national emphasis programs for particular industries.  Using that authority, OSHA has announced that it will inspect nursing homes and residential facilities nationwide that had a Days Away, Restricted, or Transferred ("DART") rate in 2010 of 10.0 or more.  The directive implementing the NEP also states that each Area Office will inspect at least three nursing homes or residential facilities within its jurisdiction each year under this program.  Thus, nursing homes or residential facilities with a 2010 DART rate of 10.0 or more should consult with their safety personnel and legal counsel to prepare for the likelihood of an OSHA inspection.

OSHA Launches New "Winter Storms" Web Page

January 2, 2012

By Patrick V. Melfi

Just in time for the Winter Solstice, the Occupational Safety and Health Administration ("OSHA") issued a press release on December 21, 2011, advising that the agency launched a web page devoted to hazards workers may face during winter storm response and recovery operations.

OSHA's new web page contains guidance on how employers and workers who are involved in cleanup and recovery operations can avoid injuries and illnesses related to snow storms and other weather conditions.  For example, OSHA offers advice on how to prepare a vehicle for the winter season, how to avoid back aches and heart attacks while shoveling snow, how to safely walk on ice, etc.  Industry-specific guidance on the new web page includes a section on utility workers' repair of downed or damaged power lines.

The web page also identifies several hazards that are associated with working in winter storms, including:  being struck by falling objects, such as icicles, tree limbs, and utility poles; driving accidents; carbon monoxide poisoning; dehydration, hypothermia, and frostbite; and falling while walking on slippery walkways.

The new web page also includes links to guidance from OSHA, the Federal Emergency Management Agency ("FEMA"), the American Red Cross, the National Weather Service, the National Oceanic and Atmospheric Administration, the Centers for Disease Control and Prevention, the National Safety Council, and other agencies and organizations.

Fall Protection: Most Common OSHA Violation for 2011

December 13, 2011

Although the data for 2011 is not yet final, OSHA expects problems related to employees falling off scaffolds, roofs, ladders, and other high places to be the top violations cited in 2011.  In addition, the most frequently violated standard subsection is expected to be the rule covering residential construction (29 C.F.R. Section 1926.501(b)(13)).  Other top violations are expected to include:  hazard communication; respiratory protection; lockout/tagout; electrical, wiring methods; powered industrial trucks; electrical, general requirements; and machine guarding.

OSHA's data serves as a reminder to employers that falls are the leading cause of deaths among construction workers.  They account for approximately one-third of all construction fatalities.  Generally speaking, OSHA's fall protection standard requires that anyone working at heights of six feet or more be provided with fall protection.  OSHA does not necessarily mandate the type of fall protection that must be used in any given situation, but rather offers many methods to achieve compliance.  A combination of different fall protection measures are often appropriate.  Fall protection strategies may include some of the following measures:

  • Fall prevention methods, such as the use of guardrails, warning lines, controlled access zones, hole covers, or safety monitoring systems;
  • Fall arrest systems, including the use of safety nets or full-body harnesses;
  • Fall protection plans, which are administrative controls that rely on special training and specific work practices and protocols; and
  • Employee training, which focuses on identifying hazards and demonstrating proficiency in the use of fall protection systems.

As we head into 2012, we are reminded of the words of Dr. Carl Sagan:  "You have to know the past to understand the present."  Employers can certainly learn from this past OSHA data by reviewing the adequacy of their fall protection measures, so that they can avoid potential OSHA violations in the future.

OSHA Kicks Off 2011 Inspection Program

September 19, 2011

By Michael D. Billok

On September 9, 2011, OSHA announced that it has begun its 2011 Site-Specific Targeting (“SST”) Program, a targeted enforcement effort under which it will conduct comprehensive inspections of worksites across the country. OSHA will select worksites for inspection based on injury and illness data for 2009 collected by OSHA in 2010.

In April 2011, OSHA selected about 14,600 worksites that may receive SST inspections based upon their injury rates, and sent each of these worksites a letter informing them of a possible future inspection.  From that initial list, OSHA designated approximately 3,700 worksites as “primary” inspection targets, and directed OSHA Area Offices to inspect those sites first. Although the list of approximately 3,700 worksites has not been published by OSHA, it is possible for an employer to determine whether it is on the list by following these steps:

1.     Calculate your DART and DAFWII rates.

Days Away, Restricted, or Transferred (DART) rate:
The DART rate accounts for injury and illness cases involving days away from work, restricted work activity, or transfers to another position (the total of columns H and I on the OSHA-300 log).
DART rate = 200,000 * (# of DART injuries) / (Total # of hours worked by all employees for calendar year).

Days Away From Work Injury and Illness (DAFWII) rate:
The DAFWII rate accounts for injury and illness cases involving only days away from work (column H on the OSHA-300 log).
DAFWII rate = 200,000 * (# of DAFWII injuries) / (Total # of hours worked by all employees for calendar year).

2.     Compare your DART rate AND your DAFWII rates to the criteria below to determine if your site is a primary inspection site.

Manufacturing establishments with a DART rate greater than or equal to 7.0, or a DAFWII rate greater than or equal to 5.0, are primary inspection sites. There are approximately 3,000 manufacturing primary inspection sites.

Non-manufacturing establishments (except for Nursing and Personal Care Facilities) with a DART rate greater than or equal to 15.0, or a DAFWII rate greater than or equal to 14.0, are primary inspection sites. There are approximately 400 non-manufacturing primary inspection sites.

Nursing and personal care facilities with a DART rate greater than or equal to 16.0, or a DAFWII case rate greater than or equal to 13.0, are primary inspection sites. There are approximately 300 nursing and personal care facility primary inspection sites.

Even if your site is not one of the 3,700 primary inspection sites, you may still be selected for an SST inspection if your facility is on the list of 14,600. Once all primary inspection sites in an area have been inspected, OSHA will inspect secondary inspection sites as follows:

Manufacturing establishments with a DART rate of 5.0 or more but less than 7.0, or a DAFWII case rate of 4.0 or more but less than 5.0, are secondary inspection sites.

Non-manufacturing establishments with a DART rate of 5.0 or more but less than 15.0, or a DAFWII case rate of 4.0 or more but less than 14.0, are secondary inspection sites. (Note that this is more inclusive than last year’s list, which would inspect facilities with DART rates of 7-15, and DAFWII rates of 5-14).

Nursing and personal care establishments with a DART rate of 13.0 or more but less than 16.0, or a DAFWII case rate of 11.0 or more but less than 13.0, are secondary inspection sites.