“Reminder: Are You In Compliance With OSHA’s New Construction Confined Space Standard?”

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Most employers in the construction industry already know that OSHA issued a new confined space standard for construction that became effective on August 3, 2015. Companies with employees who enter confined spaces at construction sites must be sure to understand the new regulation and adjust their processes in order to remain in compliance. Although the new standard has been in effect for six months, this blog provides a reminder on some of the key provisions of which employers should be aware.

As background, OSHA used to just have a confined space standard for general industry employers (29 CFR 1910.146). However, in recognition that construction sites often host multiple employers and are continually changing, with the number and nature of confined spaces changing as work progresses, OSHA promulgated a new standard, available at 29 CFR Subpart AA 1926.1200, tailored to the unique characteristics of construction sites.

While the general industry standard and the construction standard have many similarities, some key differences are:

The construction standard requires coordination when there are multiple employers at the worksite. Specifically, the construction standard imposes duties on three types of employers because of the recognition that different workers may perform different activities in the same space, which can result in hidden dangers:

Entry employers. This is defined as an employer who decides that an employee it directs will enter a permit space. Entry employers have a duty to inform controlling contractors (defined below) of any hazards encountered in a permit space. Entry employers also have to develop safe entry procedures.

Host employers. This is defined as the employer who owns or manages the property where the construction work is taking place. If the host employer has information about permit space hazards, it must share that information with the controlling contractor (defined below) and then the controlling contractor is responsible for sharing that information with the entry employers.

Controlling contractor. This is defined as the employer with overall responsibility for construction at the worksite. The controlling contractor is responsible for coordinating entry operations when there is more than one entry employer. Controlling contractors must provide any information they have about any permit space hazards to all entry employers.

The controlling contractor is also responsible for coordinating work in and around confined spaces so that no contractor working at the site will create a hazard inside the confined space. After the entry employer performs entry operations, the controlling contractor must debrief the entry employer to gather information that the controlling contractor then must share with the host employer and other contractors who enter the space later.

Continuous atmospheric monitoring is required under the construction standard “whenever possible.” In contrast, the general industry standard merely encourages continuous atmospheric monitoring where possible and only requires periodic monitoring as necessary.

The construction standard requires that a “competent person” evaluate the work site and identify confined spaces including permit-required confined spaces.

Notably, the general industry standard does not require that a “competent person” complete this task. A “competent person” is defined under the new standard as someone who is capable of identifying existing and predictable hazards associated with working conditions, including, of course, whether a workspace is permit-required.

Employers who perform construction-related activities need to make sure they understand the requirements of the new confined space construction standard. For more information, download : Confined Space in Construction: OSHA 29 CFR Subpart AA 1926.1200 here: https://www.osha.gov/confinedspaces/1926_subpart_aa.pdf or consult with your Seyfarth attorney.

Source: Seyfarth, Shaw : Evironmental Safety Update / Law Blog

http://www.environmentalsafetyupdate.com/osha-compliance/are-you-in-compliance-with-oshas-new-confined-space-standard-for-the-construction-industry/

 

 

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“OSHA Walking-Working Surfaces & Fall Protection Final Rule Requirement Implementation Dates “

On November 18, 2016, OSHA finally published a final rule updating the walking-working surfaces and fall protection standards for general industry. Percolating since 1990 (55 FR 13360), reopened in 2003 (68 FR 23528) and again in 2010 (75 FR 28862), revisions to the walking-working surfaces and fall protection standards were long overdue. OSHA’s 500+ final rule gives employers new options to combat slip, trip and fall hazards (Subpart D) while adding employer requirements to ensure those new options provide for enhanced safety.

It adds a new section under the general industry Personal Protective Equipment standard (Subpart I) that specifies employer requirements for using personal fall protection systems and clarifies obligations for several specific industries, including telecommunications, pulp, paper and paperboard mills, electrical power generation, transmission and distribution, textiles and sawmills.

The final rule addresses fall protection options (including personal fall protection systems), codifies guidance on rope descent systems, revises requirements for fixed and portable ladders, prohibits the use of body belts as part of a personal fall arrest system, and establishes training requirements on fall hazards and fall protection equipment. OSHA Administrator Dr. David Michaels stated, “The final rule will increase workplace protection from those hazards, especially fall hazards, which are a leading cause of worker deaths and injuries.” OSHA notes the final rule also increases consistency between general and construction industries, which it believes will help employers and workers that work in both industries.

The rule is effective January 17, 2017, but some of the requirements are phased in over time. Phased-in or delayed compliance dates include:

• May 17, 2017

  • Training exposed workers on fall and equipment hazards

• November 20, 2017

  • Inspecting and certifying permanent anchorages

• November 19, 2018

  • Installing personal fall arrest or ladder safety systems on new fixed ladders over 24 feet and on replacement ladders/ladder sections, including fixed ladders on outdoor advertising structure
  • Equipping existing fixed ladders over 24 feet, including those on outdoor advertising structures, with a cage, ell, personal fall arrest system, or ladder safety system

• November 18, 2036

  • Replacing cages and wells (used as fall protection) with ladder safety or personal fall arrest systems on all fixed ladders over 24 feet

OSHA estimates the rule will affect 112 million workers at nearly 7 million worksites and will prevent 29 fatalities and over 5800 injuries annually.

Many employers that have been operating under the cover of OSHA interpretive letters and statements in the preambles of the proposed rules because the standards in place were so outdated and/or ill-suited to particular work environments. For them, the final rule offers an opportunity to confirm that their policies are compliant. However, those employers should scrutinize the final rule to ensure the interpretations they were relying on were incorporated and that no additional actions are required.

Some have suggested that Congress may seek to overrule these changes using the Congressional Review Act (“CRA”) (5 U.S.C. §§801-808), but that action is risky because the CRA is such a blunt instrument. The CRA can only be used to repeal a regulatory act in its entirety; it cannot be used to amend the regulation. Moreover, repudiation by Congress of a final rule prohibits the agency from issuing a substantially similar rule in the future.

Congress has only used the CRA once—to overrule the ergonomics regulation OSHA adopted at the end of the Clinton Administration. Congress should recognize that the provisions of this final rule are too important to too many employers for it to act reflexively by disapproving the entire rule and prohibiting further action on these issues.

A copy of the final rule is found here. More on the final rule, including OSHA’s Fact Sheet, can be found on OSHA’s website here.

“The 2017 Workplace Safety Puzzle” #OSHA #Safety

From 2015 to 2017, OSHA fines increased almost 80%, making the cost of noncompliance too expensive for most organizations to ignore.

This new infographic, created for the 2017 Safety Summit, aims to help safety pros, like you, strengthen compliance, reduce costs, and improve operational efficiency.

 

“OSHA Announces Feral Cats Are Not Vermin”

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On October 4, 2016, the Occupational Safety and Health Administration issued a press release and announced that it was proposing changes to 18 separate regulations “as part of an ongoing effort to revise provisions in its standards that may be confusing, outdated or unnecessary.

The proposals run across a wide spectrum from the technical (i.e., allowing ex-rays to be maintained in digital format); to the procedural (i.e., making the process safety management standard the same for construction and general industry); to the completely understandable (i.e., eliminating any uses of employee social security numbers in exposure monitoring); to the somewhat odd (i.e., eliminating feral cats from the definition of “vermin” in the shipyard equipment regulation).

On the last point, the agency press release noted that “OSHA recognizes that feral cats pose a minor, if any, threat, and tend to avoid human contact, and OSHA proposes to remove the term ‘feral cats’ from the definition of vermin in the standard.”  The deadline for submitting comments to any of the proposals is December 5, 2016.

OSHA’s Standards Improvement Project, Proposed Revisions
October 2016

Reporting job-related hearing loss

OSHA recordkeeping regulations require employers to record and report occupational injuries and illnesses. The proposed revision codifies current enforcement policy and clarifies that a determination whether an employee’s hearing loss is “work-related” must be made using specific, clear criteria, which are also set out in OSHA regulations.

Control of Hazardous Energy (Lockout/Tagout)

The proposed revision clarifies employers’ duties under the lockout/tagout standard. The existing general industry standard requires protections against the “unexpected energization” of machinery during servicing. The proposed revision to remove the term “unexpected” reflects OSHA’s original intent and eliminates confusion regarding applicability of the standard.

Chest X-Ray (CXR) Requirements

The proposed revision removes the requirement for periodic CXR in the standards for inorganic arsenic, coke oven emissions, and acrylonitrile to make OSHA’s requirement consistent with current medical practices and reduce employer burden and paperwork.

X-Ray Storage

The proposed revision permits storage of x-rays in digital formats. OSHA adopted the existing requirement for storage of x-ray film before the existence of digital x-ray and storage technology.

Lung-function testing

The proposed revisions update the lung-function testing (spirometry) requirements for the cotton dust standard to make them consistent with current medical practices and technology.

Feral Cats

Existing requirements in the sanitation standard for Shipyard Employment specify that employers must maintain workplaces in a manner that prevents vermin infestation. OSHA recognizes that feral cats pose a minor, if any, threat, and tend to avoid human contact, and OSHA proposes to remove the term “feral cats” from the definition of vermin in the standard.

911 Emergency Services at Worksites

Existing construction regulations require employers to conspicuously post telephone numbers for ambulances, etc. at worksites located in areas where 911 emergency dispatch services are not available. The proposed revision updates this requirement to reflect the predominance of the use of cellular telephones at construction sites and the widespread adoption of 911 emergency dispatch services. The proposed revision requires the posting of location information at worksites in areas that do not have Enhanced 911 (which automatically supplies the caller’s location information to the dispatcher).

Permissible Exposure Limits (PELs)

The proposed revisions to the construction PELs requirements are corrections and clarifications to make this standard consistent with other OSHA PELs standards.

Process Safety Management of Highly Hazardous Chemicals

To avoid unnecessary duplication, OSHA proposes to replace the entire thirty-one pages of regulatory text for the Process Safety Management of Highly Hazardous Chemicals (PSM) Standard for construction with a cross reference to the identical general industry standard.

Personal Protective Equipment

Ensuring that personal protective equipment (PPE) properly fits each employee is essential to employees’ protection. The proposed revision to require employers to select PPE that properly fits each employee clarifies the construction PPE requirements and makes them consistent with general industry requirements.

Lanyard/lifeline Break Strength

The proposed revision standardizes break-strength requirements for lanyards and lifelines throughout the construction and general industry standards.

Manual on Uniform Traffic Control Devices (MUTCD)

The proposed revisions update and clarify the provisions related to traffic signs and devices, flaggers, and barricades to align with current DOT requirements. This removes the burden on construction employers, who have sought this change, to follow multiple sets of regulations for OSHA, DOT, and state and local governments.

Load Limit Postings

The proposed revision exempts single family dwellings from a requirement to post maximum safe-load limits for floors in buildings under construction, reducing a burden for residential builders. The existing OSHA standard requires posting in residential dwellings where safe-load limits are rarely, if ever, an issue, thus eliminating a paperwork burden for construction employers.

Excavation Hazards

The proposed revision clarifies employers’ duties in the excavation standard. The proposed revision clarifies that a hazard is presumed to exist when loose rock or soil and excavated material or equipment is beside a trench.

MSHA Underground Construction – Diesel Engines

Existing regulatory language requires that mobile diesel-powered equipment used underground comply with outdated Mine Safety Health Administration’s (MSHA) provisions. The proposed revision updates the regulatory language to cross-reference to the revised MSHA provisions.

Underground Construction

The proposed revision replaces outdated decompression tables used to protect employees working in pressurized underground construction sites. The proposal allows employers to use the modern French decompression tables.

Rollover Protective Structures

The proposed revision replaces the outdated construction standard with references to the appropriate consensus standards.

Regulation of coke oven emissions in construction

The proposed revision removes the regulation of coke oven emissions provisions from the construction standards. Any work during operation of coke ovens is general industry work, and the standard does not fit construction work.

Collection of Social Security Numbers

The proposed revision comprehensively removes from general industry, construction, and maritime standards all requirements to include an employee’s social security number on exposure monitoring, medical surveillance, and other records in order to protect employee privacy and prevent identity fraud.

For more information, read the news release.

“OSHA Respiratory Protection Standard To Add Two Additional Fit-Testing Protocols”

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U.S. Department of Labor
Occupational Safety and Health Administration
Office of Communications
Washington, D.C.
www.osha.gov
For Immediate Release

 

October 6, 2016
Contact: Office of Communications
Phone: 202-693-1999

OSHA proposes to amend respiratory protection standard to add
two additional fit-testing protocols

WASHINGTON – The Occupational Safety and Health Administration today issued a Notice of Proposed Rulemaking to add two quantitative fit-testing protocols to the agency’s Respiratory Protection Standard. The protocols would apply to employers in the general, shipyard and construction industries.

Appendix A of the standard contains mandatory respirator fit-testing methods that employers must use to ensure their employees’ respirators fit properly and protect the wearer. The standard also allows individuals to submit new fit-test protocols for OSHA approval. TSI Incorporated submitted an application for new protocols for full-facepiece and half-mask elastomeric respirators, and filtering facepiece respirators.

The existing standard contains mandatory testing methods to ensure that employees’ respirators fit properly and are protective. The standard also states that additional fit-test protocols may be submitted for OSHA approval. TSI Incorporated submitted an application for new protocols for full-facepiece and half-mask elastomeric respirators, and filtering facepiece respirators. The proposed protocols are variations of the existing OSHA-accepted PortaCount® protocol, but differ from it by the exercise sets, exercise duration, and sampling sequence.

The agency invites the public to comment on the accuracy and reliability of the proposed protocols, their effectiveness in detecting respirator leakage, and their usefulness in selecting respirators that will protect employees from airborne contaminants in the workplace. More specific issues for public comment are listed in the Federal Register notice.

Individuals may submit comments electronically at www.regulations.gov, the Federal e-Rulemaking Portal. Comments may also be submitted by mail or facsimile; see the Federal Register notice for details. The deadline for submitting comments is Dec. 6, 2016.

This proposed rulemaking would allow employers greater flexibility in choosing fit-testing methods for employees. The proposed rule would not require an employer to update or replace current fit-testing methods, as long as the fit-testing method(s) currently in use meet existing standards. The proposal also would not impose additional costs on any private- or public-sector entity.

Under the Occupational Safety and Health Act of 1970, employers are responsible for providing safe and healthful workplaces for their employees. OSHA’s role is to ensure these conditions for America’s working men and women by setting and enforcing standards, and providing training, education and assistance. For more information, visit www.osha.gov.

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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).

“Regulated Industry Successfully Challenges New OSHA Process Safety Management Enforcement Policies”

On September 23, 2016, the D.C. Court of Appeals ruled that the Occupational Safety and Health Administration (OSHA) wrongfully adopted new safety requirements for fertilizer dealers who have to comply with the Process Safety Management Standard. Specifically, OSHA improperly issued a memorandum redefining the “retail facility” exemption and did not allow fertilizer dealers to comment on the new rules.

OSHA has promulgated a Process Safety Management (PSM) standard that implements certain requirements for employers to protect the safety of those who work with or near highly hazardous chemicals, and help prevent unexpected releases of such chemicals. Traditionally, retail establishments do not have to comply with the PSM standard because hazardous chemicals are present only in small volumes in such instances.

Following a 2013 explosion at a West Texas Fertilizer facility (videos above) that left 15 people dead after a large amount of ammonium nitrate caught fire, OSHA issued an enforcement memorandum expanding the scope of the PSM standard to cover more retail establishments, including agricultural dealers who sell anhydrous ammonia to farmers. Yet OSHA did this without requesting comments from the public or industry.

Working with legal counsel, the Agricultural Retailers Association (ARA) and The Fertilizer Institute organized a successful lawsuit challenging the new rule. The D.C. Court of Appeals ruled that OSHA violated the Occupational Safety and Health Act when it issued the enforcement memorandum, finding that OSHA had engaged in rulemaking, and was thus bound to solicit comments from the public and industry. As a result of the successful lawsuit, ag retailers do not have to comply with the PSM standard until OSHA receives comments from the public and industry regarding the proposed changes to the PSM standard, which could take several years to finalize.

Commenting on the decision, Harold Cooper, chairman of the ARA, said that “[a]s an industry, ag retailers tend to be complacent about regulations that come our way. We keep our heads down and do what’s required,” he said. “But this rule would have limited farmers’ and retailers’ options through an agency’s improper regulatory overreach. Thankfully, ARA was uniquely prepared and positioned to defend our industry. They gave us a vehicle to fight and win this battle.”

The court’s ruling will make it more difficult in the future for OSHA to issue de facto standards without undertaking proper rulemaking procedures and soliciting comments from the public. Companies should proactively work with skilled legal counsel who can assist on rulemaking processes that impact workplace health and safety.

Source: 9/27/2016 by Daniel BirnbaumMichael Taylor  | BakerHostetler

 

 

 

 

 

“OSHA Responds to Manufacturers’ Lawsuit on New Workplace Injury and Illness Reporting Rule”

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By James L. Curtis and Craig B. Simonsen

Seyfarth Synopsis: OSHA asserts that its new injury illness reporting rule is fully within OSHA’s mandate.

This is in follow-up to our earlier blog on OSHA’s new rule, Improve Tracking of Workplace Injuries and Illnesses (Rule), 81 Fed. Reg. 29624 (May 12, 2016). The new rule concerned drug-testing, retaliation claims, and accident reporting.

The National Association of Manufacturers filed a lawsuit seeking to enjoin the new rule. TEXO ABC/AGC, et al. v. Thomas, et al., No. 3:16-CV-1998 (N.D. TX July 8, 2016). Thereafter OSHA announced that it was delaying the effective date for enforcement of the rule until November 1, 2016.

In TEXO ABC/AGC the Plaintiffs alleged that OSHA is “putting a target on nearly every manufacturer in this country by moving this regulation forward. Not only does OSHA lack statutory authority to enforce this rule, but the agency has also failed to recognize the infeasibility, costs and real-world impacts of what it preposterously suggests is just a mere tweak to a major regulation.” The lawsuit sought a declaratory judgment finding that the rule was unlawful to the extent that it prohibited or otherwise limited incident-based employer safety incentive programs and routine mandatory post-accident drug testing programs.

On August 19, 2016 OSHA responded to the request for a preliminary injunction, filing its opposition. OSHA argues that as the “Plaintiffs have not established a likelihood of success or irreparable harm, the Court need not consider the balance of equities or public interest. Even if it did, though, they tip sharply against injunctive relief in this case. Plaintiffs have established no harm at all, much less irreparable harm. OSHA, by contrast, has determined that the anti-retaliation provision is necessary for the viability of its broader recordkeeping Rule, which takes effect January 1, 2017.”

We anticipate that the Plaintiffs will file a reply brief shortly, followed by oral arguments before the Court. We will keep you updated as this fast moving issue develops.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the OSHA Compliance, Enforcement & Litigation Team.

 Source: Seyfarth Shaw LLP

“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”

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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
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