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