OSHA Recordkeeping Update:

Transcription

1 OSHA Recordkeeping Update: The Fate of Recent Rulemakings, Compliance Implications, and What to Expect Next Jayni Lanham ACC Environmental Legal Quick Hit Webinar November 9, 2017

2 Overview OSHA Recordkeeping Overview Rules Issued at Close of Obama Administration Recent Developments and Current Status What Companies Can Do to Comply What to Expect Next 2

3 OSHA Recordkeeping Overview 3

4 Statutory Authority for OSHA s Recordkeeping Regulations Occupational Safety and Health Act of 1970, Section 8(c)(2) The Secretary [of Labor]... shall prescribe regulations requiring employers to maintain accurate records of, and to make periodic reports on, work-related deaths, injuries and illnesses other than minor injuries requiring only first aid treatment and which do not involve medical treatment, loss of consciousness, restriction of work or motion, or transfer to another job. 4

5 OSHA s Regulations 29 CFR Part 1904: Recording and Reporting Occupational Injuries and Illnesses Applicability Recording Criteria Injury and Illness Records Reporting of Fatalities and Severe Injuries Electronic Submission of Injury and Illness Records Anti-Retaliation Provisions 5

6 Applicability All employers covered by the Occupational Safety and Health Act (OSH Act) are covered by these Part 1904 regulations Partial Exemptions: Companies with 10 or fewer employees (1904.1) Industries identified in Appendix A to Subpart B (1904.2) 6

7 Basic Recording Requirement: 29 CFR Non-exempt employers must record each: Meets: Fatality, Injury, or Illness That is Work- Related That is a New Case One or more general criteria in , or A specific case in

8 General Recording Criteria: 29 CFR Death Days Away from Work Restricted Work Transfer to Another Job Medical Treatment Beyond First Aid Loss of Consciousness Significant Injury or Illness Diagnosed by Physician or Licensed Health Care Professional 8

9 Specific Cases: 29 CFR : Needlestick and Sharps Injuries : Medical Removal Under OSHA Standard : Occupational Hearing Loss : Tuberculosis (musculoskeletal disorders) never went into effect. 9

10 Recordkeeping Forms: 29 CFR OSHA 300 OSHA 300A OSHA 301 Log of workrelated injuries and illnesses Summary of recordable injuries and illnesses Injury and illness incident report 10

11 Retention and Updating: 29 CFR year retention period Must update OSHA 300 Log to include: Newly discovered recordable injuries/ illnesses Changes to classification of previously recorded entry Change in description or outcome Prior to electronic reporting rule: Employers maintained injury and illness records internally OSHA accessed these records during an inspection or via limited written requests 11

12 Reporting of Fatalities and Severe Injuries: 29 CFR Any work-related: Fatality In-patient hospitalization Amputation Loss of an eye Must be reported to OSHA Requirement applies to all employers 12

13 Reporting Time Frame: 29 CFR (a) 8 Hours Fatality 24 Hours In-Patient Hospitalization Amputation Loss of Eye 13

14 Final Rule to Improve Tracking of Workplace Injuries and Illnesses 14

15 Final Rule to Improve Tracking of Workplace Injuries and Illnesses Issued by OSHA on May 12, 2016 Key Components Electronic submission of injury and illness records Anti-retaliation provisions 15

16 Electronic Reporting 16

17 Employers Subject to Electronic Reporting: 29 CFR Large Employers Establishments with more than 249 employees High Risk Employers Establishments with employees in certain high-risk industries Listed in Appendix A to subpart E of Part

18 High Risk Industries: 29 CFR App x A Freight trucking Waste collection Agriculture/ Forestry Utilities Manufacturing Building material and supplies dealers Postal service Wholesale trade Furniture stores Dry-cleaning and laundry Department stores RV parks and recreational camps Waste treatment/ disposal Construction Grocery stores Warehousing and storage 18

19 Records that Must be Submitted: 29 CFR Large Employers Form 300 Form 300A Form 301 High Risk Employers Form 300A 19

20 How to Electronically Submit Records to OSHA Three ways to submit records via OSHA s Injury Tracking Application: 1. Manually enter data into web form 2. Upload Comma Separated Value File CSV to process single or multiple establishments at the same time 3. Users of automated recordkeeping systems may transmit data via an API 20

21 Original Compliance Deadlines Employers with 250+ Employees High-Risk Industry Employers with Employees July 1, OSHA Form 300A 2016 OSHA Form 300A July 1, OSHA Forms 300, 300A, and OSHA Form 300A March 2, 2019 (and every subsequent year) Previous year s OSHA Forms 300, 300A, and 301 Previous year s OSHA Form 300A 21

22 Current Compliance Deadlines Employers with 250+ Employees High-Risk Industry Employers with Employees December 1, OSHA Form 300A 2016 OSHA Form 300A July 1, OSHA Forms 300, 300A, and OSHA Form 300A March 2, 2019 (and every subsequent year) Previous year s OSHA Forms 300, 300A, and 301 Previous year s OSHA Form 300A 22

23 What Employers Need to Do Large and High Risk employers should be prepared to submit their 2016 Form 300A by December 1, 2017 Exceptions: CA, MD, MN, SC, UT, WA, and WY have not yet adopted the requirement to submit injury and illness reports electronically State and local government establishments in IL, ME, NJ, and NY are not currently required to submit their data through the ITA Beveridge & Diamond, P.C. 23

24 Anti-Retaliation Provisions 24

25 Anti-Retaliation Provisions: 29 CFR Must inform employees of right to report workrelated injuries and illnesses Procedures for reporting must be reasonable and not deter or discourage employees from reporting May not retaliate against employees for reporting work-related injuries or illnesses 25

26 Anti-Retaliation Provisions: Practical Implications Injury and Illness Reporting Procedures Post-Incident Drug Testing Safety Incentive Programs Disciplinary policies 26

27 Anti-Retaliation Provisions: OSHA Guidance Informing Employees Employers can satisfy this requirement by posting current version of OSHA Poster Can also meet requirement by providing written or notice to each employee 27

28 Anti-Retaliation Provisions: OSHA Guidance Reporting Procedures Reasonable: Require report as soon as practicable Require report through reasonable means Unreasonable: Discipline for failure to report before recognition of workrelated injury Discipline for failure to report immediately as a result of injury or illness Unnecessarily cumbersome Excessive number of steps 28

29 Anti-Retaliation Provisions: OSHA Guidance Prohibition Against Retaliation Disciplinary Policies: Avoid automatic discipline simply for reporting Treat violations of work rules the same way Post-Incident Drug Testing: Consider whether drug use could have contributed to injury Do not single out injured employees Incentive Programs: Avoid withholding benefit because of reported injury Reward compliance with safety rules, participation in safety-related activities 29

30 Anti-Retaliation Provisions: Current Status Went into effect on December 1, 2016 Originally scheduled to become effective on August 10, 2016 Industry pushback and legal challenges led to delay But, future is uncertain OSHA has announced intention to revise and/or remove provisions Dormant legal challenges in N.D. Tex. and W.D. Okla. 30

31 What Employers Need to Do Ensure that employees have been informed of right to report Review procedures for reporting injuries and illnesses Review disciplinary policies Review safety incentive programs Review post-incident drug testing policies Nuts & Bolts of OSHA s Recordkeeping 31

32 Final Rule to Clarify Employer s Continuing Obligation to Make and Maintain Records 32

33 Final Rule to Clarify Employer s Continuing Obligation to Make and Maintain Records Longstanding OSHA Policy: Issue recordkeeping citations up to 5 years after violation 2012: D.C. Circuit disagrees in AKM v. Sec. of Labor (Volks) 2016: OSHA issued final rule clarifying obligation to make and maintain records April 3, 2017: Final rule repealed under Congressional Review Act 33

34 What to Expect Next 34

35 Potentially Different Paths Further regulatory rollback? Anticipated OSHA rulemaking to revise electronic reporting rule House effort to block funding Increased Enforcement? Future enforcement efforts could be driven by electronically submitted data Risk of enforcement of false statements under the Worker Endangerment Initiative 35

36 Recommended Actions Review procedures for employee reporting of injuries and illnesses Including disciplinary policies, drug testing programs, and safetyincentive programs Review practices for making and maintaining injury and illness records Review procedures for reporting serious incidents to OSHA Prepare for December 1, 2017 electronic submission deadline 36

37 Questions? Thank you! Jayni Lanham Principal Baltimore Occupational Safety and Health Practice (410)