OSHA 2016 Regulatory Updates Are You Prepared?

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1 OSHA 2016 Regulatory Updates Are You Prepared? ANHA Annual Convention September, 2016 OSHA. "Our new rule will 'nudge' employers to prevent work injuries to show investors, job seekers, customers and the public they operate safe and well-managed facilities. Access to injury data will also help OSHA better target compliance assistance and enforcement resources, and enable 'big data' researchers to apply their skills to making workplaces safer. -Dr. David Michaels, Assistant Secretary of Labor for Occupational Safety and Health Summary of NEW OSHA Rules: Penalty Adjustments First adjustment to OSHA penalties since 1990 Bipartisan Budget Act of 2015 Effective August 1, 2016 Recordkeeping Rule Revision Impacts ALL employers with 20+ employees Improve Tracking of Workplace Injuries and Illnesses Rule Effective August 1, 2016 Hazard Communication Standard Requires a Full Hazard Communication Program Revision First update to Hazard Communication Rule since 1991 Effective for employers June 1,

2 Penalty Rule Overview: Under the Bipartisan Budget Act of 2015, which President Obama signed into law on Nov. 2, Section 701, Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015, Requires OSHA to increase its civil penalties for the first time since Penalty Rule Continued: Under the act, a one-time Catch Up Adjustment occurred August 2016 Yearly increases based on the Consumer Price Index will occur each year after The new penalties took effect August 2, Any citations issued by OSHA on or after this date are subject to the new penalties if the related violations occurred after November 2, OSHA Penalty Summary: The new amounts are as follows: For willful and repeat violations, the new maximum fine is $124,709 per violation (up from $70,000) The new minimum is $8,909 per violation (up from $5,000). For serious violations, the new cap is $12,471 per day (up from $7,000). For failure-to-abate violations, the new cap is $12,471 per day (up from $7,000). 2

3 OSHA Penalty Impact: OSHA Penalty Factors Include: History Reduction History Increase Repeat Violations Severe Violator Enforcement Program Gravity-Based Penalty Size Reduction Good Faith Minimum Penalties Additional Administrative Modifications to the Penalty Calculation Policy OSHA s Electronic Recordkeeping Final Rule OSHA s Electronic Recordkeeping Final Rule What does the final rule do? The new rule requires certain employers to electronically submit injury and illness data to OSHA that they are already required to keep under OSHA regulations. The content of these establishment-specific submissions depends on the size and industry of the employer. 3

4 Recordkeeping Rule Continued: Effective Dates: January 1, 2017: Establishments with 250 employees must submit information from their 2016 form 300A by July 1, Establishments with 20 employees but < 250 employees in designated industries must submit information from their 2016 form 300A by July 1, Effective Dates Continued: January 1, 2018: Establishments with 250 employees must submit from all 2017 forms (300A, 300, and 301) by July 1, Establishments with 20 employees but < 250 employees in designated industries must submit their 2017 form 300A by July 1, Beginning in 2019 and every year thereafter: Information must be submitted annually by March 2. Recordkeeping Rule Continued: How should the data be submitted and how long will it take? OSHA will provide a secure website for the electronic submission of information. The website will include web forms for direct data entry and instructions for other means of submission (e.g. file uploads). 4

5 Recordkeeping Rule Continued: How will Personally Identifiable Information (PII) be protected? OSHA will not collect employee name, employee address, name of physician or other health care professional, or healthcare facility name and address if treatment was given away from the worksite. All of the case specific narrative information in employer reports will be scrubbed for PII using software that will search for, and de-identify, personally identifiable information before the data are posted. Recordkeeping Rule IMPACT: ANTI-Retaliation Why does OSHA address retaliation in this rule? Section 11(c) of the Occupational Safety and Health Act already prohibits any person from discharging or otherwise discriminating against an employee who reports a fatality, injury, or illness. However, OSHA may not act under that section unless an employee files a complaint with OSHA within 30 days of the retaliation. In contrast, OSHA will be able to cite an employer for retaliation even if the employee did not file a complaint, or if the employer has a program that deters or discourages reporting through the threat of retaliation. Recordkeeping Rule IMPACT: How should an employer inform employees of their right to report work-related injuries and illnesses free from retaliation by their employer? One way for employers to meet this requirement is by posting the OSHA "It's The Law worker rights poster from April 2015 or later ( Employers also must establish a reporting procedure that does not deter or discourage an employee from reporting work-related injuries and illnesses. 5

6 Retaliation Exposures: May an employer require post-incident drug testing for an employee who reports a workplace injury or illness? The rule does not prohibit drug testing of employees. It only prohibits employers from using drug testing, or the threat of drug testing, as a form of retaliation against employees who report injuries or illnesses. If an employer conducts drug testing to comply with the requirements of a state or federal law or regulation, the employer's motive would not be retaliatory and this rule would not prohibit such testing. Retaliation Exposures: Does the rule allow an employer to have an employee incentive program? This rule does not prohibit incentive programs. However, employers must not create incentive programs that deter or discourage an employee from reporting an injury or illness. Incentive programs should encourage safe work practices and promote worker participation in safetyrelated activities. Retaliation Exposures Incentive Program Risks: Be careful that program doesn t incentivize underreporting e.g. bonus for team of employees if no one is injured over defined period of time vs. bonus for employees participating in safety committee. Programs based on lagging as opposed to leading indicators potentially problematic. OSHA indicates determinations will be made on a case-by-case basis. OSHA provides little guidance on what would be acceptable, particularly for programs that combine lagging and leading indicators. 6

7 Retaliation Exposures Drug/Alcohol Testing Risks: OSHA s premise: Poorly designed and implemented post-accident/postinjury drug testing policies inhibit employees from reporting workplace injuries, or punish them for doing so. This causes under-recording of occupational injuries and illnesses on OSHA records, in violation of the Agency s recordkeeping rule, and creates a misleading profile of the company s injuries and illnesses Retaliation Exposures Drug/Alcohol Testing Risks: OSHA states: Employers need not specifically suspect drug use before testing, but there should be a reasonable possibility that drug use by the reporting employee was a contributing factor to the reported injury or illness in order for an employer to require drug testing. In addition, drug testing that is designed in a way that may be perceived as punitive or embarrassing to the employee is likely to deter injury reporting. Retaliation Exposures Do not tie drug and alcohol testing to: Injuries alone, particularly injuries that have no plausible connection to drug or alcohol abuse. For example: allergic reactions, animal or insect bites, back or muscle strains caused by overexertion, carpal tunnel syndrome and other repetitive strain injuries, diabetic episodes, etc. The employee s filing of a workers compensation claim. An OSHA recordable injury or illness. Before conducting post-accident testing, investigate to see whether a condition attributable to the employer was involved (especially an OSHA violation). 7

8 Recordkeeping Rule UPDATE: Enforcement Delay Memo July 13, 2016 Extension: November 1, 2016 HANDOUT Hazard Communication Standard Revision Hazard Communication Rule: Purpose: The standard was developed to make sure that everyone who works with any hazardous chemical is aware of the hazards and the necessary precautions. 8

9 What is the GHS? The Globally Harmonized System (GHS) is an international approach to chemical labels and safety data sheets (SDS). OSHA s Hazard Communication standard has adopted the GHS to improve safety and health of workers through more effective communications on chemical hazards. Hazard Communication Effective Completion Date Requirement(s) Who December 1, 2013 Train employees on the new label elements and safety data sheet (SDS) format. Employers June 1, 2015 December 1, 2015 Compliance with all modified provisions of this final rule, except: The Distributor shall not ship containers labeled by the chemical manufacturer or importer unless it is a GHS label Chemical manufacturers, importers, distributors and employers June 1, 2016 Update alternative workplace labeling and hazard communication program as necessary, and provide additional employee training for newly identified physical or health hazards. Employers Transition Period to the effective completion dates noted above May comply with either 29 CFR (the final standard), or the current standard, or both Chemical manufacturers, importers, distributors, and employers Hazard Communication Summary: During the phase-in period, employees will see the old and new labels on chemical containers. All chemical containers in the workplace have to be in compliance with the new standard by June

10 Other OSHA Emphasis Workplace Violence According to OSHA, Healthcare and social service workers face a significant risk of job-related violence. The National Institute for Occupational Safety and Health (NIOSH) defines workplace violence as violent acts (including physical assaults and threats of assaults) directed toward persons at work or on duty. Workplace Violence Continued: According to the Bureau of Labor Statistics (BLS), 27 out of the 100 fatalities in healthcare and social service settings that occurred in 2013 were due to assaults and violent acts. Workplace Violence Continued: For healthcare workers, assaults comprise 10-11% of workplace injuries involving days away from work, as compared to 3% of injuries of all private sector employees. In 2013, a large number of the assaults involving days away from work occurred at healthcare and social assistance facilities (ranging for 13 to 36 per 10,000 workers). By comparison, the days away from work due to violence for the private sector as a whole in 2013 were only approximately 3 per 10,000 full-time workers. 10

11 Workplace Violence Continued: Rise of Workplace Violence Type 1 Criminal Intent: Violent acts by criminals who have no other connection with the workplace but enter to commit a robbery or other crime. Type 2 Customer/Client/Resident: Violence directed at employees by customers, clients, residents. Type 3 Co-Worker: Violence against coworkers, supervisors, or managers by a present or former employee. Type 4 Personal: Violence in the workplace by someone who doesn t work there, but has a personal relationship with an employee. Workplace Violence Continued: Violence Prevention Programs A written program for workplace violence prevention, incorporated into an organization s overall safety and health program, offers an effective approach to reduce or eliminate the risk of violence in the workplace. The building blocks for developing an effective workplace violence prevention program include: (1) Management commitment and employee participation, (2) Worksite analysis, (3) Hazard prevention and control, (4) Safety and health training, and (5) Recordkeeping and program evaluation. 11

12 Workplace Violence Reference: Guidelines for Preventing Workplace Violence for Healthcare and Social Service Workers U.S. Department of Labor Occupational Safety and Health Administration OSHA R 2015 OSHA Regulatory Implications: More inspections. OSHA has received a larger budget and has hired more inspectors Larger fines..with Annual increases Regulation by shaming. OSHA hopes public condemnation of business activities that result in serious injury or death will act as a deterrent. Inspectors will interview employees. In every inspection, OSHA compliance officers will talk to workers privately and confidentially to find out if companies are recording injuries as required. More checks on employee training. OSHA says its inspectors will check whether required training is conducted in a language that workers can understand. Injury and Illness Prevention Programs required. OSHA wants companies to implement risk-based workplace prevention programs that uncover hazards before they lead to an injury or death. Closer looks at safety incentive programs. OSHA says some employers have implemented programs, inadvertently or by design, that discourage injury reporting. OSHA Regulatory Implications: Indirect Costs of OSHA Regulatory Changes: Drug/Alcohol Testing If conducting drug testing, you must be prepared to comply with the requirements of a state or federal law or regulation, the employer's motive would not be retaliatory and this rule would not prohibit such testing Incentive Programs This rule does not prohibit incentive programs. However, employers must not create incentive programs that deter or discourage an employee from reporting an injury or illness. 12

13 Summary: OSHA Regulatory Changes Penalty Increases Recordkeeping Rules Anti-retaliation Hazard Communication Anticipated OSHA Emphasis Workplace Violence Indirect Costs of Regulatory Changes Workers Compensation Michael Arther, NHA MCA Consulting, LLC