Tag Archives: OSHA

UPDATED 11/22/2017: Deadline to Electronically Submit OSHA Data

Contributed by Matthew Horn, November 21, 2017

BREAKING NEWS: In follow up to our blog from yesterday, OSHA issued a press release this morning extending the deadline to electronically report from 12/1 to 12/15. All other information in the blog remains unchanged.
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On June 27, 2017, OSHA issued a press release announcing that it would be delaying the compliance date for its Rule requiring most employers to electronically submit their injury and illness data to OSHA. The press release pushed back the compliance date four months, from July 1, 2017 to December 1, 2017, so OSHA could review the Rule closely.

Dec1Just over two weeks later, OSHA issued another press release announcing that it would be launching its website allowing employers to submit their injury and illness data on August 1, 2017. On August 1, 2017, OSHA made good on that promise and launched its website, which is linked here. To date, despite OSHA’s promise to review the Rule closely, it has taken no action to roll back or delay the electronic reporting requirements, so the December 1st deadline remains.

Under the Rule, virtually all employers with twenty or more employees are required to submit their completed Form 300A for 2016 by December 1, 2017. In 2018, employers with twenty or more employees must submit their completed Form 300A for 2017 by July 1, 2018, and those employers with more than 250 employees must submit their Form 300 and 301s by that deadline, as well.

While we were hoping OSHA would roll back or delay the Rule, it appears that is not going to happen. Accordingly, all applicable employers would be well-served submitting their data online no later than December 1st.

OSHA Charges Ahead With Electronic Report Rule

Contributed by Matthew Horn, August 2, 2017

Electronic Reporting File_2On June 27, 2017, OSHA issued a press release announcing that it would be delaying the compliance date for its Rule requiring most employers to electronically submit their injury and illness data to OSHA. The press release proposed pushing the compliance date back four months, from July 1, 2017 to December 1, 2017, so OSHA could review the Rule closely.

Just over two weeks later, OSHA issued another press release announcing that it would be launching its website allowing employers to submit their injury and illness data on August 1, 2017. On August 1, 2017, OSHA made good on that promise and launched its website, which is linked here.

Under the Rule, virtually all employers with twenty or more employees are required to submit their completed Form 300A for 2016 by December 1, 2017. In 2018, employers with twenty or more employees must submit their completed Form 300A for 2017 by July 1, 2018, and those employers with more than 250 employees must submit their Form 300 and 301s by that deadline, as well.

Notably, despite moving forward with the launch of its injury tracking website, OSHA has yet to address the “review” of the Rule it promised in its June 27, 2017 press release. Accordingly, employers would be well-served to wait to submit their 300A data until shortly before the December 1, 2017 deadline to see if OSHA changes course on the Rule before that deadline. Mark your calendars.

Three Needless Deaths: Recognize Confined Space Dangers on Your Job Sites

Contributed by Patrick M. Sanders, July 24, 2017

Construction Site

Supervisor using walkie-talkie at construction site

On July 14, 2017, the U.S. Department of Labor’s Occupational Safety and Health Administration cited a contractor for 10 serious violations after the deaths of three workers who succumbed to toxic gases in a manhole on January 16, 2017.

Preventable safety failures led to the deaths of Elway Gray, a 34-year-old pipe layer, who entered the manhole – a confined space – and quickly became unresponsive; Louis O’Keefe, a 49-year-old laborer, who entered the hole in an attempt to rescue Gray; and Robert Wilson, a 24-year-old equipment operator, who followed to rescue his two fallen coworkers. Two other employees and a firefighter were also exposed to the toxic gases during rescue attempts but survived.

Post-incident atmospheric testing of the confined space revealed lethal levels of carbon monoxide and hydrogen sulfide. OSHA investigators issued Douglas N. Higgins, Inc. and its related contracting company, serious citations, totaling $119,507, in penalties.

The incident-related serious violations included failure to:

  • Purge or ventilate the confined space before entry;
  • Prevent workers from exposure to an asphyxiation hazard;
  • Provide necessary rescue and emergency equipment for employees that were overcome inside a permit-required confined space;
  • Develop and implement a written hazard communication program for a worksite on which employees were exposed to dangerous chemicals and gases;
  • Use a calibrated direct-reading device to test for toxic gases, creating an asphyxiation hazard;
  • Create and document the confined space entry permit;
  • Provide training to employees in the safe performance of their assigned duties in permit-required confined spaces; and
  • Provide a guardra­­­il around the manhole opening, exposing employees to a fall hazard.

Full citations may be found here.

OSHA Area Director Condell Eastmond’s comments were all too familiar: “Three employees needlessly lost their lives and others were injured due to their employer’s failure to follow safe work practices.”

This case should remind all employers that confined spaces within the workplace often present difficult and involved identification, training, written program management and compliance documentation retention issues.

What responsibility do companies have to ensure that their contractors protect their workers?

Those organizations that have a record of previous “serious” violations must be aware OSHA will rigorously enforce employee training, workplace safety information requirements, toxic workplace condition testing and all related rescue and emergency safety equipment regulations and will issue repeat, willful and, in extreme cases, criminal violations, should subsequent violations be documented by OSHA.

UPDATE: OSHA DELAYS ENFORCEMENT OF ITS CONTROVERSIAL POST-ACCIDENT DRUG TESTING RULE UNTIL DECEMBER 1, 2016

Contributed by Jonathan Hoag, October 18, 2016

As we previously reported, OSHA postponed enforcement of its controversial post-accident drug testing rule from August 10, 2016 to November 1, 2016.  Now, with the November 1, 2016 deadline approaching, OSHA has extended its stay on enforcing the post-drug testing rule until December 1, 2016.

OSHA initially delayed enforcement of the rule until November 1, 2016 because a lawsuit was filed in July 2016 by numerous parties seeking injunctive relief to prevent enforcement of the rule. OSHA agreed to postpone enforcement of the rule to allow the parties to brief the legal issues presented in the lawsuit. The legal briefing was completed in September 2016.  While the Judge was reviewing the case to determine if OSHA should be enjoined from enforcing its rule, OSHA claimed that the plaintiffs were only seeking injunctive relief on behalf of the parties to the lawsuit and not on a national basis.

On October 14, 2016, the Judge determined that the parties should further brief the issue as to whether the injunction sought was only on behalf of the parties to the lawsuit or if it would apply nationwide. The Judge requested that OSHA delay enforcement of the rule until December 1, 2016 to allow time for a decision on the pending lawsuit. Today, OSHA informed the court that it has agreed to a further delay and it has advised all regions of the decision to delay enforcement until December 1, 2016. The court intends to make a determination on the request for an injunction prior to the December 1, 2016 deadline. If an injunction is entered, the court will also decide if it prohibits enforcement nationwide or only with respect to the parties.

Employers should continue with preparations to comply with OSHA’s new rule. For more in depth coverage, join us for a webinar on this topic on October 19, 2016 from 10:30 a.m. – 12:00 p.m. or for an in-person seminar in Effingham, Illinois on October 20, 2016.

 

OSHA – Now Doing Editorials​

Contributed by Matthew Horn

On July 22, 2015, OSHA issued an underground construction company in Texas six willful and nine serious citations with fines totaling $423,900, stemming from a trench collapse in February of 2015. While the citations and fine amount are not unusual under the new regime, the press release issued by OSHA following the issuance of the citations goes to great lengths to embarrass and harass the company, even identifying the company’s workers compensation insurer by name—presumably, in an atteyellow construction hatmpt to try and prevent the company from obtaining insurance in the future. See the press release here.

Going forward, employers should know that in addition to citations and fines, OSHA intends to add malicious press releases and editorials to its arsenal. Now more than ever, employers should take steps to ensure that they are prepared for when OSHA arrives at their facility or site in an effort to avoid being the subject of a similar press release.

OSHA Revises Whistleblower Manual to Clarify Issues Related to Remedies and Settlement of Whistleblower Claims

Contributed by Jonathan Hoag

OSHA continues to focus enforcement efforts on whistleblower/retaliation claims.  Whistleblower claims have been on the rise and this trend is expected to continue for the coming years.  OSHA recently updated its Whistleblower Investigations Manual to offer clarity to remedies and settlements when handling a whistleblower claim under the Act.

The revised manual states that in some cases OSHA may issue a preliminary reinstatement and employers must make a bona fide job offer upon receipt of such findings.  This would be a bold order, but it might be used with greater frequency as OSHA continues to step-up enforcement of retaliation claims.  In addition, the manual now contains a section explaining that emotional distress/mental anguish, pain and suffering can be part of compensatory damages awarded under the OSHA whistleblower provisions.  Of particular concern is that OSHA expressly states that it may rely solely on a complainant’s own statement to prove objective manifestations of distress and statements by health care professions are not required.

whistleThe whistleblower manual now includes detailed guidance as to when punitive damages should be awarded in whistleblower cases.  OSHA will likely consider punitive damages in cases when a management official knew his/her action violated the whistleblower statute or had reason to believe action was unlawful but did not act to stop or prevent the conduct.  OSHA will focus on statements made by company officials, the amount of whistleblower training provided to staff, prior complaints about retaliation, and the company’s policies and manuals.  OSHA expressly acknowledges that punitive damages are likely not appropriate if the employer has a good faith defense, such as an effectively-enforced policy against retaliation.  Employers should review current policies and handbooks to be sure it is clearly communicated that retaliation is not tolerated and that there are no obstacles for employees in reporting complaints to OSHA (i.e. employees are not required to first report concerns to management before going to OSHA).

OSHA continues to recognize the value in settling matters, including whistleblower claims, as opposed to litigating the claims.  OSHA investigators are required to adhere to specific requirements when discussing settlement and employers should expect OSHA to seek 100% relief in order to settle (although full relief is not an absolute requirement for settlement).  If a private settlement is reached and not submitted to OSHA (or if not approved by OSHA), the complaint may still be dismissed.  However, if OSHA’s investigation has gathered enough information to establish a violation or if OSHA determines it needs to protect other employees, OSHA may issue merit findings.

Based on the revised guidance issued by OSHA, employers can provide substantial protection from damages, including punitive damages, by updating policies and handbooks to strictly prohibit retaliation.  In addition, all employers should provide regular training to employees (especially supervisors) about the rights of whistleblowers and the company’s zero tolerance policy on retaliation.  These simple steps will go a long way in avoiding liability and damages for whistleblower claims.

 

OSHA Emphasizes Whistleblower Protection for Temporary Workers

Contributed by Jonathon Hoag

Last month OSHA published another bulletin as part of its series for providing guidance on safety and health compliance with respect to temporary workers.  This particular bulletin reiterated OSHA’s position that temporary employees have the same rights and protections as all other covered employees, including protection against retaliation for engaging in protected activity.  OSHA stressed that a temporary employee who believes he or she is retaliated against for reporting injuries, participating in OSHA inspection, raising safety concerns or complaints, or engaging in any other conduct protected by the act may file a complaint with OSHA against the host employer, staffing agency, or both.

OSHA has been expressly targeting enforcement efforts related to temporary workers and separately ramping up whistleblower protections.  This recent bulletin merges these two initiatives and sends a cautionary reminder to employers that use of temporary staff will not shield it from potential whistleblower liability under OSHA.  As the bulletin states, a simple request from the host company to remove or replace a temporary worker can put both the host employer and staffing agency on the hook for a retaliation claim if the employee alleges he or she engaged in protected activity before being removed – this is true even if the staffing agency places the worker at another location.  Retaliation claims of all types continue to rise and this is yet another area where employers that host temporary workers must proceed with caution.

OSHA is expected to continue issuing bulletins and guidance related to host employer and staffing agency responsibilities for compliance with safety and health compliance.  OSHA’s temporary worker initiative is updated periodically and is located at:  https://www.osha.gov/temp_workers/.