Advertisements

“OSHA 300 Logs: Four Common Mistakes Employers Make”

2010-osha-300-log-1

This is your annual reminder about the important annual February 1st deadline to prepare, certify and post your OSHA 300A Annual Summary of workplace injuries and illnesses, for all U.S. employers, except those with ten or fewer employees or those whose NAICS code is for the set of low hazard industries exempted from OSHA’s injury and illness recordkeeping requirements, such as dental offices, advertising services, and car dealers (see the exempted industries at Appendix A to Subpart B of Part 1904).

Specifically, by February 1st every year, employers must:

  • Review their OSHA 300 Log(s);
  • Verify the entries on the 300 Log are complete and accurate;
  • Correct any deficiencies identified on the 300 Log;
  • Use the injury data from the 300 Log to calculate an annual summary of injuries and illnesses and complete the 300A Annual Summary Form; and
  • Certify the accuracy of the 300 Log and the 300A Summary Form.

The Form 300A is a summation of the workplace injuries and illnesses recorded on the OSHA 300 Log during the previous calendar year, as well as the total hours worked that year by all employees covered by the particular OSHA 300 Log.

Four Common 300A Mistakes that Employers Make

We see employers make the following four common mistakes related to this annual injury and illness Recordkeeping duty:

  1. Not having a management representative with high enough status within the company “certify” the 300A;
  2. Not posting a 300A for years in which there were no recordable injuries;
  3. Not maintaining a copy of the certified version of the 300A form and
  4. Not updating prior years’ 300 Logs based on newly discovered information about previously unrecorded injuries or changes to injuries that were previously recorded.

Certifying the 300 Log and 300A Annual Summary

The 300 Log and the 300A Annual Summary Form are required to be “certified” by a “company executive.” Specifically what the company executives are certifying is that they:

  1. Personally examined the 300A Annual Summary Form;
  2. Personally examined the OSHA 300 Log from which the 300A Annual Summary was developed; and
  3. Reasonably believe, based on their knowledge of their companies’ recordkeeping processes that the 300A Annual Summary Form is correct and complete.

A common mistake employers make is to have a management representative sign the 300A Form who is not at a senior enough level in the company to constitute a “company executive.”  As set forth in 1904.32(b)(4), company executives include only the following individuals:

  • An owner of the company (only if the company is a sole proprietorship or partnership);
  • An officer of the corporation;
  • The highest ranking company official working at the establishment; or
  • The immediate supervisor of the highest ranking company official working at the establishment.

Posting the 300A Annual Summary

After certifying the 300A, OSHA’s Recordkeeping regulations require employers to post the certified copy of the 300A Summary Form in the location at the workplace where employee notices are usually posted.  The 300A must remain posted there for three months, through April 30th.

Another common mistake employers make is to not prepare or post a 300A Form in those years during which there were no recordable injuries or illnesses at the establishment.  Even when there have been no recordable injuries, OSHA regulations still require employers to complete the 300A form, entering zeroes into each column total, and to post the 300A just the same.

Maintaining the 300A for Five Years

After the certified 300A Annual Summaries have been posted between February 1st and April 30th, employers may take down the 300A Form, but must maintain for five years following the end of the prior calendar year, at the facility covered by the form or at a central location, a copy of:

  • The underlying OSHA 300 Log;
  • The certified 300A Annual Summary Form; and
  • Any corresponding 301 Incident Report forms.

In this technology era, many employers have transitioned to using electronic systems to prepare and store injury and illness recordkeeping forms. As a result, another common mistake employers make is to keep only the electronic version of the 300A, and not the version that was printed, “certified” typically by a handwritten signature and posted at the facility. Accordingly, those employers have no effective way to demonstrate to OSHA during an inspection or enforcement action that the 300A had been certified.

Finally, another common mistake employers make is to put away old 300 Logs and never look back, even if new information comes to light about injuries recorded on those logs.  However, OSHA’s Recordkeeping regulations require employers during the five-year retention period to update OSHA 300 Logs with newly discovered recordable injuries or illnesses, or to correct previously recorded injuries and illnesses to reflect changes that have occurred in the classification or other details.  This requirement applies only to the 300 Logs; i.e., technically there is no duty to update 300A Forms or OSHA 301 Incident Reports.

Source: JD Supra – Eric Conn

untitled-design

Advertisements

“What Should You Do When OSHA Shows Up At Your Door” #OSHA #Inspection

osha-jacket-850x476

1/27/2017 by Krista Sterken  | Foley & Lardner LLP

You arrive at work bright and early, only to find that someone beat you there — OSHA is waiting to perform an inspection. Now what? Many employers think they have little say in what happens next. Actually, employers have many choices to make, starting as soon as OSHA arrives.

The first thing step is simply bringing the compliance officer to a conference room or other appropriate location. You should select a location that is private and located close to the entrance, so you do not have to walk the compliance officer through any more of your facility than necessary. If the compliance officer happens to see something that may be a violation, this could provide the basis for a citation and/or expansion of the inspection.

Next, it is time to collect some information — you need to understand why OSHA is there. There are three main types of inspections: complaint inspections (conducted in response to a safety complaint), report inspections (conducted in response to a report of an employee death, injury, or illness), and program inspections (conducted under one of OSHA’s emphasis programs, which focus on particular industries or hazards). In some cases, a previous citation might provide the basis for a follow-up inspection.

You also need to know what OSHA intends to do. The inspection should be tailored to the reason for the visit. For example, a complaint inspection should be limited to areas related to the complaint. Program inspections are dictated by the focus of the program — you can obtain more information from OSHA’s website. All inspections should follow OSHA’s Field Operations Manual.

Finally, you must decide whether to agree to OSHA’s inspection plan. If OSHA identified a legitimate basis for the inspection and an appropriate inspection plan, then you might decide to allow the inspection to begin. However, if you have concerns, you have the right to refuse entry and require OSHA to return with a warrant (unless there is an imminent danger, in which case OSHA must be permitted immediate entry). If you require a warrant, OSHA will have to persuade a judge that its intended inspection is appropriate.

Employers are often nervous about requiring a warrant. However, you have the right to do so. OSHA understands this, and is not permitted to retaliate against you in any way. Requiring a warrant can be an effective way to impose fair parameters for the inspection.

Once the inspection has started, you are only at the very beginning of the process. Because there will be countless other important decisions, involve counsel early (preferably, as soon as OSHA arrives). Every company should also give some advance thought to its “OSHA plan,” identifying specifically how a request for inspection will be handled long before a compliance officer shows up on the company’s doorstep.

“Safety Topic Information For a Better Safety Committee at Your Workplace”

safety-committee

  • J
  • K
  • Q
  • U
  • X

“The True Cost Of Work Related Injuries – Accidents Cost More Than People Realize!”

The True Cost Of Work Related Injuries – An infographic by the team at SafetyVideos.com

“OSHA’s Wall Of Shame – With Limited Staff, Agency Targets “Severe Violators”

osha-jacket-850x476

Source: FairWarning.org – By Paul Feldman and Stuart Silverstein

Soon after beginning their cleanup of a fume-filled tanker car at an Omaha, Nebraska rail maintenance yard, Adrian LaPour and Dallas Foulk were dead.

An explosion that April 2015 afternoon trapped LaPour in a flash fire inside the car and hurled Foulk out the top to his death.

Six months later their employer, Nebraska Railcar Cleaning Services, was hammered by the U.S. Occupational Safety and Health Administration with seven citations for “egregious, willful” workplace violations, along with 26 other charges. The agency proposed fines of nearly $1 million. To top it off, OSHA announced that it was tossing the company into its Severe Violator Enforcement Program, or SVEP.

Six years into the severe violator program – arguably the broadest workplace safety initiative launched during the Obama administration – more than 500 businesses are on its list of bad actors. They include corporate giants such as DuPont and International Paper, each with tens of thousands of employees, as well as more than 300 construction firms, many with fewer than a dozen workers.

Just last week an auto parts maker in Alabama, Ajiin USA, was labeled a severe violator and hit with proposed fines of $2.5 million related to the June death of a 20-year old worker. Regina Allen Elsea, who was two weeks away from getting married, was crushed when a robotic machine she was doing maintenance on abruptly restarted. Ajiin, which supplies automakers Kia and Hyundai, said in a statement it will continue to cooperate with OSHA and that “safety has always been our guiding principle.”

Along with subjecting employers to a form of public shaming, the severe violator program helps OSHA work out settlements intended to force companies to clean up their job safety practices. The program, which replaced a George W. Bush administration initiative that an inspector general’s audit derided as ineffectual, also can result in extra inspections, sometimes at multiple sites, and force companies to hire new safety personnel. The effort, though, faces an uncertain future under the Trump administration.

The severe violator list represents an attempt to deal with an overwhelming regulatory challenge. With OSHA and its state counterparts relying on fewer than 1,850 inspectors to monitor about 8 million workplaces, it would take federal officials 145 years to inspect each job site once, union researchers estimate. The aim of the list is to let OSHA’s limited staff zero in on some of the worst offenders.

David Michaels, the assistant secretary of labor in charge of OSHA, said in an interview with FairWarning that “even if we doubled our inspectors, we would still be able to only get to a small portion of employers. And so we need tools like SVEP, which extend our capabilities and encourage more employers to do the right thing even without inspections.”

But the targeted nature of the program creates a Catch-22. The death of a worker is clearly the worst thing that can happen at a job site. Yet with about 4,800 workplace fatalities a year nationally, putting every company with a death on the severe violator list would overwhelm OSHA and defeat the goal of tougher enforcement for a subset of the worst offenders. For that reason, the death of a worker will put a company on the list only if the circumstances are particularly flagrant or reflect a pattern of reckless conduct. In 2015 only one out of every roughly 200 employers with an on-the-job fatality landed on the list.

At the same time, it’s not certain that the program has effectively deterred recalcitrant employers, as OSHA lacks any comprehensive assessment of its performance. For evidence of the impact, OSHA officials point to settlements they have reached with companies on the list. “There hasn’t been a really good objective evaluation,” said MIT Professor Thomas A. Kochan, co-director of MIT’s Institute for Work and Employment Research.

One critic, John Newquist, (a LinkedIn connection of mine) and former OSHA official in Chicago, said his sense is that among employers, “There’s no fear of OSHA at all.”

Michaels, who will leave the agency by the January 20, 2017, presidential inauguration, expressed hope that the Trump administration won’t dismantle the severe violator effort or other enforcement initiatives. He said tough enforcement protects responsible employers because it “levels the playing field” between them and competitors who skimp on safety. Still, the anti-regulation views of Trump cabinet picks including Andrew Puzder, the president-elect’s choice for labor secretary, are raising expectations of cutbacks in workplace enforcement.

Nebraska Railcar –- currently the target, several sources say, of a Justice Department criminal investigation of last year’s explosion –- highlights how long it can take a wayward company to be put into the severe violator program. Jacob Mack, who worked for the company in 2013, says he told OSHA about brutal conditions long before the deadly blast. “Not a day goes by I don’t remember the hell there,” Mack said.

The company wasn’t listed until after the explosion even though it, as well as other businesses controlled by Nebraska Railcar’s majority owner, Steven Braithwaite, had repeatedly been cited by OSHA dating back to 2005. That includes a 2013 citation involving a fire risk from oil storage tanks. Nebraska Railcar stayed off the list, though, partly because its prior violations didn’t involve hazards the agency deemed high-priority, such as falls, amputations, cave-ins and exposure to toxic chemicals.

(Nebraska Railcar is contesting its current OSHA citations, as are other companies cited in this story that haven’t reached a settlement with the agency. Nebraska Railcar and most of the other companies have not responded to requests for comment.)

Case Farms, a leading poultry processor with plants in Ohio and North Carolina, finally landed on the list in 2015 after being cited for more than 350 violations over a 25-year period, according to OSHA. The case, which processes nearly 3 million chickens a week for fast food chains and supermarkets, last year was fined $861,500 for 55 violations, including amputation and fall hazards, at its Winesburg, Ohio, plant.

Sometimes disaster has struck even after companies were put in the program. One such case, in October, spurred a public outcry in Boston. Two laborers working for Atlantic Drain Service died after being trapped in a trench that was inundated by water, dirt, and debris after a pipe burst. Atlantic Drain had been on the severe violator list since 2012.

The October deaths “were entirely preventable,” The Boston Globe wrote in an editorial, “had city and state officials taken minimal steps to investigate the construction company before issuing permits.”

Whatever the shortcomings of the severe violator program, labor advocates say, the wide range of companies it snares -– and the number and gravity of their violations -– underscore its importance and the need to protect workers from callous bosses. OSHA’s other options are limited. The agency lacks the authority to shut down dangerous workplaces and its fines generally remain modest despite an increase that took effect in August.

“OSHA is one-eighth the size of the EPA, it has the lowest penalties of almost any government agency – but even though it is small, it is critical that enforcement is maintained,” said Deborah Berkowitz, the OSHA chief of staff from 2009 to 2013. The severe violator list, she conceded, is “not an end-all tool,” but an important tool.

An example OSHA officials point to is Ashley Furniture, the nation’s largest retailer of home furnishings. It was listed last year after being cited for 38 violations, 12 of them willful, and assessed $1.76 million in fines. Inspections showed more than 1,000 work-related injuries in less than four years at its plant in Arcadia, Wisconsin.

Over 100 of the injuries took place on similar woodworking machines, including a July 2014 incident in which a worker lost three fingers. In June, the privately held firm settled the case, agreeing to pay penalties of $1.75 million and to adopt safety measures in Arcadia and at three other plants in Wisconsin and Mississippi.

Some corporate defense lawyers say being labeled a “severe violator” is such a black eye that it strongly motivates companies to avoid trouble with OSHA. However, they criticize the program for lacking due process, because companies are labeled severe violators even as they appeal citations.

“You are dumped into SVEP essentially the day that the citations are issued and a citation is nothing more than an allegation,” said Eric J. Conn, a Washington, D.C.-based attorney who specializes in OSHA defense cases. “Having the federal agency that is responsible for safety and health branding that employer as a bad actor … absolutely has significant consequences to the employer’s business.”

In the meantime, corporate lawyers say, competitors or critics can take advantage of the situation. If residents near a listed site “don’t like your company, to begin with, this is more ammunition they can use to go to a zoning board to block permits for expansion,” said Adele Abrams, a Washington, D.C.-based attorney.

On-the-job deaths can keep companies in the program for years. DuPont was listed after four workers at its La Porte, Texas, chemical plant died of asphyxiation in 2014. The disaster occurred after a supply line released more than 20,000 pounds of deadly methyl mercaptan gas. The company, which manufactures pesticides at the Texas plant, was assessed $273,000 for eight OSHA violations. DuPont said it couldn’t comment because it is appealing its case.

AMF Bowling Centers, Inc. has been on the list since 2011, when a worker at its lanes in Addison, Texas, was fatally pulled into an automatic pin-setting machine while trying to clear a jam. OSHA had previously cited AMF in 2007 and 2008 for failing to provide proper machine guarding on pinsetters. The case was settled, with AMF agreeing to pay more than $90,000 in penalties.

Oil services giant Nabors Completion and Production Services Co. was listed following the death of welder Dustin Payne, a 28-year-old former Marine who served in Iraq and Afghanistan. He was killed in a 2014 explosion when vapors ignited inside a tank he was welding in North Dakota.

Houston-based Nabors, which boasts of operating the world’s largest land-based drilling rig fleet, was assessed $97,200 in fines and charged with a willful violation for not having thoroughly cleaned the tank of oil residue before sending Payne in.

“Dustin Payne and his fiancée should be discussing marriage and their future together. Instead, she is left stricken and trying to move forward without him,” Eric Brooks, OSHA’s area director in Bismarck, N.D., said in a news release.

International Paper Co. was added to the list last year after a 57-year-old mechanic was killed in a fire while replacing filter bags in machinery at its Ticonderoga, N.Y., plant. The bags contained combustible dust that ignited.

In assessing $211,000 in fines, OSHA said the company had failed to supply fire-resistant clothing or adequate training. The firm had previously been cited for failing to conduct annual inspections of ignitable equipment at company sites in Chicago and Newark, Ohio.

Although big companies draw the most widespread attention, the employers most commonly labeled severe violators are small construction firms with high emphasis hazards related to falls or excavation cave-ins. Yet small construction firms often elude the follow-up inspections that are supposed to be a key feature of the program.

A FairWarning analysis of the current list of 523 severe violators found that 167 had not been re-inspected, and almost all were construction firms. In many cases, the firms had shut down their worksites or went out of business before inspectors could return.

Eric Frumin, safety and health director of the union coalition Change to Win, said given the way the industry operates, OSHA can be “powerless to find and vigorously confront the worst actors.”

A trench collapse last year in New York that put a construction firm on the list also led to criminal charges. The cave-in collapse in lower Manhattan buried Carlos Moncayo, 22, under tons of dirt. His employer, Sky Materials Corp. of Maspeth, was fined $140,000 and listed for willfully failing to provide cave-in protection

Last month, Sky’s site foreman was convicted of criminally negligent homicide in the death of Moncayo, one of at least 18 New York City construction workers who died on the job in 2015. The project’s general contractor, Harco Construction LLC, was convicted of manslaughter and criminally negligent homicide in June.

Deadly incidents also have brought rail tank car cleaning companies into the program. At Nebraska Railcar, the disaster came soon after the workers returned from a lunch break and started digging out thick residue from an oil tanker. The lone survivor among the three employees working on the tanker, Joe Coschka, 36, said he was just outside the car, lowering buckets of the blacktop like material into a 55-gallon drum.

Coschka said the odor from inside the tanker was powerful, and that an air monitor was beeping. Even so, he said he assumed a supervisor who should have known better than him whether the air was a hazard, should have informed workers to evacuate the tank car immediately.

Soon Coschka heard a loud hiss, and then sparks started shooting out of the tanker. The next thing he remembers is dangling from the side of the car, still attached to his safety harness, with a fire raging inside. “And I knew Adrian was in there, and Dallas was looking pretty bad on the ground. I just knew I had to get out of there,” said Coschka. He managed to scramble to safety despite suffering back and shoulder injuries.

Coschka remains haunted by the disaster. Although he sometimes blames himself for not questioning the foreman who sent the workers into the tanker car, most of his anger is aimed at Braithwaite, the main owner of the business. He said he wishes the tougher OSHA actions had come sooner. Referring to the years of citations against Braithwaite’s companies, Coshka added: “It’s just sad because this guy dropped the ball so many times and he just keeps getting away with it.” Coschka had started at Nebraska Railcar only a month earlier.

Source: FairWarning.org – By Paul Feldman and Stuart Silverstein

“OSHA Enforcement Case Database By State” #OSHA #Violations #Data

osha-database-of-fines-2016

Enforcement Cases with Initial Penalties Above $40,000

(Includes citations issued starting January 1, 2015. Cases are updated weekly. There is a posting delay to ensure the parties have been notified.)

Click on link to view States Map and Violations by State : https://www.osha.gov/topcases/bystate.html

NOTE: OSHA is currently migrating its legacy system. Cases prior to 2011 (Federal OSHA) and 2013 (OSHA State Plans) may be affected by this migration. Cases indicated without the .015 extension reflect the data as of 08/05/2016. The next updates for those cases will be reflected October, 2016. Should you need case status updates for those cases before October 2016, please contact your originating OSHA Office.

“Free Webinar – On Demand” – “What To Do When OSHA Comes Calling”

Free Webinar On Demand What to Do When OSHA Comes Knocking

Many businesses view the issue of compliance as merely a nuisance, and the fines that result simply as the cost of doing business. Effective August 1, this “cost of doing business” will rise considerably thanks to a new regulation that includes a 78% penalty increase. Are you prepared for an OSHA inspection?

This free webinar on-demand provides tips and best practices to help you prepare for your next OSHA inspection. View the webinar to learn:

What to expect when OSHA arrives

How to walk inspectors through your facility

Best practices for impressing your OSHA auditor

How to contest an OSHA citation

Sign Up – Register Here: http://bit.ly/2a0AqE5

Speaker Profile

Rick Foote has over 25 years of experience in the field of Environmental, Health & Safety and is currently an Environmental Services Consulting Manger for Triumvirate. Rick has been with Triumvirate for over 12 years where he has established dozens of successful EH&S programs for companies that had few or no systems in place. He brings client programs into full regulatory compliance by establishing what programs exists, what level of compliance is achieved, and identifying the changes that need to be implemented. Each EH&S program that Rick develops is customized to the individual client’s needs.

“Tree Care Industry Safety Raises OSHA Concerns”

By Bruce Rolfsen

July 13 — An OSHA rule covering the tree care and trimming industry may have to cover a wide expanse of hazards—from falling tree branches to insect bites to broken aerial lifts to pesticides—agency officials were told July 13 during a meeting with industry representatives.

The stakeholders meeting was the latest step in the Occupational Safety and Health Administration’s move to restart a rulemaking focused on protecting workers who cut and trim trees (81 Fed. Reg. 38,117).

While OSHA has regulations focused on logging, the agency doesn’t have specific rules for most types of tree trimming.

William Perry, head of OSHA’s Directorate of Standards and Guidance, said that the agency hasn’t yet set a timeline for pursuing the rule. OSHA is still in an information-gathering phase and needs to determine if a tree care rule would trigger a Small Business Regulatory Enforcement Fairness Act review.

While many in the audience might favor OSHA simply adopting the voluntary American National Standards Institute consensus tree-trimming standard (ANSI Z133-2012), the agency can’t adopt the standard as is, Perry said.

OSHA administrators David Michaels told about three dozen people attending the day-long session that the rule should be “common sense” and “usable by employers.”

Often workers injured in tree-trimming accidents had little training or protective equipment and if training was offered, it may not have been in a language they spoke, Michaels said.

Industry Support

Most of the people attending the meeting, favored OSHA’s pursuit of a rule.

Mark Gavin, president of the Tree Care Industry Association, said many lawmakers were surprised that the association came to them seeking support for the tree care rule.

OSHA in 2008, at the urging of the association, initiated a tree trimming rulemaking (73 Fed. Reg. 54,118) then set the project aside in 2010. The agency resurrected the rulemaking (RIN:1218-AD04) in 2015.

Peter Gerstenberger, the association’s safety director, said that from 2009 through 2013 there had been 408 tree care fatalities. Falls and being hit by tumbling branches are the most dangerous risks for workers in aerial buckets or climbing.

On the ground, workers are most at risk from falling trees and branches, however power tools such as chainsaws and chippers were also a hazard, Gerstenberger said

Participants said many of the deaths among workers on the ground were attributable to a lack of training and safety precautions, such as not allowing workers under a tree and inside a tree’s potential fall zone while trimming was taking place.

John Sullivan, a safety official with Lewis Tree Service, said that when he joined the company several years ago it was common for workers to be under trees while cutting was going on. Since then, the culture of the company changed to discourage workers from being under trees and now drop zones are marked with orange cones.

Representatives from the large tree care companies such as Asplundh Tree Expert Co. and Carolina Tree Care said their safety practices call for hazard analysis and team meetings before work on trees begins.

The industry’s challenge is that while large companies and many small employers have safety protocols, others treat tree work as an unskilled task, representatives said. For example, companies hand workers chainsaws without on-the-job safety training or expect workers to climb a dead or rotting tree.

To contact the reporter on this story: Bruce Rolfsen in Washington atbrolfsen@bna.com

To contact the editor responsible for this story: Larry Pearl atlpearl@bna.com

Copyright © 2016 The Bureau of National Affairs, Inc. All Rights Reserved.

“OSHA Penalties To Be Adjusted For Inflation After August 1, 2016”

qt-usdol-seal_original

Maximum penalties for OSHA violations are set to increase for the first time since 1990 as part of overall federal penalty adjustments mandated by Congress last year. The increases were announced Thursday by the Department of Labor, which issued two interim rules covering penalty adjustments for several DOL agencies, including OSHA, the Mine Safety and Health Administration and Wage and Hour Division.

OSHA’s new penalty levels will take effect after Aug. 1, when the maximum penalty for serious violations will rise from $7,000 to $12,471. The maximum penalty for willful or repeated violations will increase from $70,000 to $124,709. Any citations issued by OSHA after Aug. 1 will be subject to the new penalties if the related violations occurred after November 2, 2015. OSHA will provide guidance to field staff on the implementation of the new penalties by Aug. 1.

OSHA Penalty Adjustments to Take Effect August 2016

In November 2015, Congress enacted legislation requiring federal agencies to adjust their civil penalties to account for inflation. The Department of Labor is adjusting penalties for its agencies, including the Occupational Safety and Health Administration (OSHA).

OSHA’s maximum penalties, which were last adjusted in 1990, will increase by 78%. Going forward, the agency will continue to adjust its penalties for inflation each year based on the Consumer Price Index.

The new penalties will take effect after August 1, 2016.  Any citations issued by OSHA after that date will be subject to the new penalties if the related violations occurred after November 2, 2015.

Type of Violation  Current Maximum Penalty New Maximum Penalty
Serious
Other-Than-Serious
Posting Requirements
$7,000 per violation $12,471 per violation
Failure to Abate $7,000 per day beyond the abatement date $12,471 per day beyond the abatement date
Willful or Repeated $70,000 per violation $124,709 per violation

Adjustments to Penalties

To provide guidance to field staff on the implementation of the new penalties, OSHA will issue revisions to its Field Operations Manual by August 1. To address the impact of these penalty increases on smaller businesses, OSHA will continue to provide penalty reductions based on the size of the employer and other factors.

State Plan States

States that operate their own Occupational Safety and Health Plans are required to adopt maximum penalty levels that are at least as effective as Federal OSHA’s.

For More Assistance

OSHA offers a variety of options for employers looking for compliance assistance.

The On-site Consultation Program provides professional, high-quality, individualized assistance to small businesses at no cost.

OSHA also has compliance assistance specialists in most of our 85 Area Offices across the nation who provide robust outreach and education programs for employers and workers.

For more information, please contact the Regional or Area Office nearest you.

U.S. Department of Labor | June 30, 2016

US Department of Labor announces new rules to adjust civil penalty amounts

WASHINGTON – In 2015, Congress passed the Federal Civil Penalties Inflation Adjustment Act Improvements Act to advance the effectiveness of civil monetary penalties and to maintain their deterrent effect. The new law directs agencies to adjust their penalties for inflation each year using a much more straightforward method than previously available, and requires agencies to publish “catch up” rules this summer to make up for lost time since the last adjustments.

As a result, the U.S. Department of Labor announced today two interim final rules to adjust its penalties for inflation based on the last time each penalty was increased.

“Civil penalties should be a credible deterrent that influences behavior far and wide,” said U.S. Secretary of Labor Thomas E. Perez. “Adjusting our penalties to keep pace with the cost of living can lead to significant benefits for workers and can level the playing field responsible employers who should not have to compete with those who don’t follow the law.”

The first rule will cover the vast majority of penalties assessed by the department’s Employee Benefits Security Administration, Mine Safety and Health Administration, Occupational Safety and Health Administration, Office of Workers’ Compensation Programs, and Wage and Hour Division. The second rule will be issued jointly with the Department of Homeland Security to adjust penalties associated with the H-2B temporary guest worker program.

Under the 2015 law, agencies are directed to publish interim final rules by July 1, 2016. The department will accept public comments for 45 days to inform the publication of any final rule.

The new method will adjust penalties for inflation, though the amount of the increase is capped at 150 percent of the existing penalty amount. The baseline is the last increase other than for inflation. The new civil penalty amounts are applicable only to civil penalties assessed after Aug. 1, 2016, whose associated violations occurred after Nov. 2, 2015.

The rules published under the 2015 law will modernize some penalties that have long lost ground to inflation:

  • OSHA’s maximum penalties, which have not been raised since 1990, will increase by 78 percent. The top penalty for serious violations will rise from $7,000 to $12,471. The maximum penalty for willful or repeated violations will increase from $70,000 to $124,709.
  • OWCP’s penalty for failure to report termination of payments made under the Longshore and Harbor Workers’ Compensation Act, has only increased $10 since 1927, and will rise from $110 to $275.
  • WHD’s penalty for willful violations of the minimum wage and overtime provisions of the Fair Labor Standards Act will increase from $1,100 to $1,894.

A Fact Sheet on the Labor Department’s interim rule is available here. A list of each agency’s individual penalty adjustments is available here.

# # #

Media Contact:

Amy Louviere, 202-693-9423, louviere.amy@dol.gov

Release Number: 16-1380-NAT


U.S. Department of Labor news materials are accessible at http://www.dol.gov. The department’s Reasonable Accommodation Resource Center converts departmental information and documents into alternative formats, which include Braille and large print. For alternative format requests, please contact the department at (202) 693-7828 (voice) or (800) 877-8339 (federal relay).

“OSHA Electronic Recordkeeping Final Rule Places New Requirements On Employers”

On May 12, 2016, the Occupational Safety and Health Administration (OSHA) published a long-awaited final rule requiring certain employers to electronically submit injury and illness data, providing for such data to be made publicly available, and updating employee notification and antiretaliation provisions.

Background

OSHA is charged with enforcing the Occupational Safety and Health Act of 1970 (OSH Act), which applies to virtually all private employers. OSHA, either directly or through states with parallel agencies to which OSHA defers rulemaking and enforcement, requires almost all employers to prepare and maintain routine records of certain work injuries and illnesses (“recordable” incidents). These records include a report for each recordable incident (Form 301), a log of such incidents (Form 300), and an annual summary (Form 300A) that must be completed and posted even if no recordable incidents occurred during the year.

Previously, OSHA could obtain the establishment-specific injury and illness data contained in these routine records only in three limited ways: (1) workplace inspections, (2) surveys to employers under the OSHA Data Initiative, and (3) mandatory employer reporting of certain workplace illnesses and injuries, including fatalities.

The final rule greatly expands OSHA’s access to this information by requiring certain employers to regularly and electronically submit data from their routine records. Specifically, the rule requires the following:

  • Establishments with 250 or more employees that are required to keep routine records must electronically submit required information from all three records annually (no later than March 2 of the year after the calendar year covered by the form).
  • Establishments with 20 to 249 employees in certain industries must electronically submit required information from Form 300A annually (no later than March 2 of the year after the calendar year covered by the form).
  • Establishments must electronically submit requested information from their routine records upon notification from OSHA

OSHA plans to phase in implementation of the data collection system beginning July 2017. By March 2019, all establishments covered under the final rule must submit all required information.

OSHA hopes the electronic submission requirements will help it use resources more effectively and encourage employers to prevent worker injuries and illnesses by allowing the agency to obtain a much larger and more timely database of the information that most employers are already required to record.

Publication of illness and injury data

Notably, OSHA will make the collected information publicly available in a searchable online database. The agency hopes that researchers and the public will also be able to use the data to identify work-related hazards and particularly hazardous industries and processes.

OSHA insists that it doesn’t intend to release personally identifiable information from reported records and that it will use “software that will search for and de-identify personally identifiable information before OSHA posts the data.” Given the frequency of media reports on the fallibility of even the most sophisticated data security systems and companies, many are understandably skeptical about the agency’s ability to safeguard employee information under this new electronic reporting system.

Employee notification and retaliation

The final rule also amends OSHA’s record-keeping regulation with respect to how employers inform employees to report work-related injuries and illnesses. This part of the rule:

  • (1)  Requires employers to inform employees of their right to report work-related injuries and illnesses free from retaliation;
  • (2)  Clarifies the existing implicit requirement that an employer’s procedure for reporting work-related injuries and illnesses be reasonable and that a procedure that would deter or discourage reporting isn’t reasonable; and
  • (3)  Prohibits employers from retaliating against employees for reporting work-related injuries or illnesses, consistent with the existing “whistleblower” provisions in Section 11(c) of the OSH Act.

The third aspect of this part of the new rule is significant because it provides OSHA with an additional enforcement tool with respect to employee retaliation. Whereas OSHA could always take action against an employer in response to an employee complaint under Section 11(c), OSHA will now be able to issue citations to employers for retaliating against employees even absent an employee complaint. The agency anticipates that feasible abatement methods will mirror the remedies under Section 11(c), which include but aren’t limited to rehiring or reinstatement with back pay. Employers can contest citations before the independent Occupational Safety and Health Review Commission.

OSHA explains that the final rule prohibits retaliatory adverse action against an employee “simply because” she reported a work-related injury or illness. To that end, the final rule states that nothing in it “prohibits employers from disciplining employees for violating legitimate safety rules, even if the same employee . . . was injured as a result of that violation and reported that injury or illness.” Importantly, employees who violate the same work rule must be treated similarly regardless of whether they also reported a work-related illness or injury. The final rule notes that postinjury drug-testing policies and employee safety incentive programs will be scrutinized under this provision.

States with their own occupational safety and health plans will be required to adopt identical requirements in their record-keeping and reporting regulations.

The employee notification and retaliation provisions become effective August 10, 2016. The remainder of the final rule becomes effective January 1, 2017.

Bottom line

OSHA continues to push through initiatives intended to raise the bar on workplace safety and health standards, including with respect to employer record keeping and reporting. In light of the 80 percent penalty increases in effect this summer, you should consult with counsel to ensure you comply with any new obligations that may apply under this new rule.

Arielle Sepulveda is an attorney with Day Pitney LLP in Parsippany, New Jersey. She can be reached at 973-966-8063 or asepulveda@daypitney.com.

Source:BLR® and Conn Maciel, Carey PLLC
%d bloggers like this: