osha goes on the attack as the obama administration winds down: are you prepared?

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OSHA Goes on the AttackAre You Prepared?

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Comparatively Minor Problems

Hazard Communication

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https://www.osha.gov/dsg/hazcom/HCSFactsheet.html

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Comparatively Minor Problems

Temporary Workers

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SAFETY RULE:“Dim your headlights for

approaching vehicles – even if the gun is already loaded

and the deer is in sight.”

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An employer cannot contract away its legal duties to its employees or its ultimate responsibility under the

Act by requiring another party to perform them.”

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Comparatively Minor Problems

OSHA Inspections

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Comparatively Minor Problems

Workplace Violence

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MEASURESEnforcement

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1THE SEVERE VIOLATOR

ENFORCEMENT PROGRAM (SVEP)

MEASURESEnforcement

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EGREGIOUS VIOLATIONS

MEASURESEnforcement

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SEVERE INJURY REPORTING

MEASURESEnforcement

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Hours to Report8Old Rule+ all work-related fatalities, and+ in-patient hospitalizations of

3 or more employees

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Hours to Report8New Rule+ all work-related fatalities that

occur within 30 days or a work-related incident

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Hours to Report24New Rule + all work-related in-patient

hospitalizations of one or more employees for “care or treatment”;

+ all work-related amputations;+ all work-related losses of an eye+ (if they occur within 24 hours of

work-related incident)15

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Reported Injury Priority Cases

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Fatalities

2+ people hospitalized

Chemical illness

Injury to a temporary workers or minor

Situations where the hazard continues to exist

Cases where employer had similar incident, history of willful or repeat violations, or is in the SVEP program

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CORPORATE-WIDE ABATEMENT

MEASURESEnforcement

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EXPANDED INVESTIGATIONS

MEASURESEnforcement

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PENALTIES

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Other Than Serious

Serious

Repeat

Willful

Failure to Abate

OSHA PenaltyClassifications

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Type of Violation

Former Maximum

Penalty

New Maximum

Penalty

Other than Serious $7,000 $12,471

Serious $7,000 $12,471

Repeat $70,000 $124,709

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Type of Violation

Former Maximum

Penalty

New Maximum

Penalty

Willful $70,000 $124,709

Failure to Abate $7,000 $12,471 per day

Posting Violation $7,000 $12,471

Penalty Schedule

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Electronic Reporting REQUIREMENTS

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Electronic Submission ofOSHA FORMS

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January 1,

2017250+ employees Submit OSHA Form 300A by 7/1/17

Certain industry employees of

20-249 employeesSubmit OSHA Form 300A by 7/1/17

January 1,

2018250+ employees Submit Forms 300A, 300 and 301 by 7/1/18

Certain industry employees of

20-249 employeesSubmit Form 300A by 7/1/18

January 1,

2019 All employers Submit all forms by 3/2/19

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Public Access toEMPLOYER DATA

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Why Public Shaming?

Since high injury rates are a sign of poor

management, no employer wants to be

seen publicly as operating a dangerous workplace.”

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Our new reporting requirements will ‘nudge’ employers to prevent worker injuries and illnesses to demonstrate to

investors, job seekers, customers and the public that they operate safe and well-

managed facilities.”

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Non-RetaliatingREPORTING

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Anti-RetaliationREQUIREMENTS

1Establish a reasonable procedure for employees to report workplace injuries and illnesses

Notify employees of the procedure for reporting workplace injuries and illnesses2

3Notify employees that (a) they have the right to report workplace injuries and illnesses, and (b) employers are prohibited from discriminating or retaliating against employees who make such reports

Take measures to ensure that employees who report workplace injuries or illnesses are not retaliated against for doing so

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Injury and Illness Reporting Procedures Must Be “Reasonable”

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Employers Must Inform Employees That They

Have a RIGHT to Report Injuries and Illnesses Free From Retaliation

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Employers May Not Discharge or

Discriminate Against Any Employee for

Reporting Work-Related Injuries or Illnesses

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“OSHA may not act under that section [11(c)] unless an employee files a complaint…within 30 days of the retaliation. Under the final rule,

OSHA will be able to cite an employer for retaliation even if the employee did not file a complaint, or if the employer has a program

that deters or discourages reporting through the threat of retaliation.”

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‘s New Authority to Issuea Citation for Alleged Retaliation

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: Common Potentially RetaliatingPrograms That Discourage Reporting

Discipline issued regardless of fault

Discipline issued on unreasonable requirements for timely reporting

Discipline for violations of safety rules, used as a pretext to retaliate for reporting injuries

Programs that (intentionally or not) create incentives not to report injuries or illnesses

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Although drug testing employees may be a reasonable workplace policy in some situations, it is often perceived as an invasion of privacy, so if an injury or

illness is very unlikely to have been caused by employee drug use, or if the

method of drug testing does not identify impairment but only use at some time

in the recent past, requiring the employee to be drug tested may inappropriately deter reporting.”

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“First Condition

Drug use by the employee is “likely to have contributed

to the incident”

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“Second Condition

The drug test must be able to accurately identify that an impairment was caused

by the drug use

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“ Positive results for marijuana increased 26% since 201126%

45% of workers who tested positive in 2015 showed marijuana use45%

Amphetamine positive tests increased 44% since 201144%

Post-accident positive tests results have increased 30% since 201130%

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SAFETYIncentive Programs

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Depending on how an incentive program is structured,

reluctance to lose the bonus or peer pressure from other crew members whose prizes are also threatened

reduces the reporting of injuries and illnesses in the job, rather than reducing the actual number of

workplace injuries and illnesses.”

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Incentive programs targeted by

Programs that intentionally or unintentionally provide employees with

an incentive not to report injuries or illnesses, such as rewarding employees with significant prizes or bonuses if the employees have not been injured over

a given period of time

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It is a violation for an employer to use an incentive program to take adverse action, including denying a

benefit, because an employee reports a work-related injury or illness, such as disqualifying the employee for a monetary bonus or any other action

that would discourage or deter a reasonable employee for reporting the work-related injury or illness.”

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Permissible Safety Incentive Programs

“The rule does not prohibit incentive programs. However, employers must not create incentive programs that deter or discourage an employee from reporting an injury or illness. Incentive programs should encourage safe work practices and promote worker participation in

safety-related activities.”

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Safety Incentive Plan Review

Is it possible that the program would incentivize employees not to report injuries or illnesses?Does the program focus on conduct that leads to an injury or illness, rather than the mere fact that an injury or illness occurs?

Does the program punish or reward employees for injuries that almost occurred? Does it punish or reward employees who report?