OSHA Recordkeeping, Anti- Retaliation and Regulation Update Wisconsin Agri-Business Association Safety Day July 13, 2017 Charles B. Palmer N19 W24133 Riverwood Drive Suite 200 Waukesha, WI 53188 262.956.6518 Important OSHA Changes Penalties Reporting Fatalities/Amputations/Hospitalizations Electronic Reporting Anti-Retaliation Rules Whistleblower Claims Workplace Violence Penalties 3 1
OSHA Penalties Adjusted for the first time in 24 years as of August 2016 The new penalties took effect August 2016 Any citations issued by OSHA on or after this date, will be subject to the new penalties if the related violations occurred after November 2, 2015 Annual Penalty Adjustment: OSHA will adjust the maximum penalties by the percentage increase in the CPI for the fiscal year before Congress passed Inflation Adjustment Act, but forgot to amend OSH Act. Maximum Penalties per Violation Violation Level Former Maximum Penalty Revised Maximum Penalty (Eff. 8/1/16) Current Maximum Penalty (Eff. 1/1/17)* Serious $ 7,000 $ 12,471 $ 12,675 Other-Than- Serious Willful or Repeated Posting Requirements $ 7,000 $ 12,471 $ 12,675 $70,000 $124,709 $126,749 $ 7,000 $ 12,471 $ 12,675 Failure to Abate $7,000 per day unabated beyond the abatement date [generally limited to 30 days maximum] $12,471 per day unabated beyond the abatement date [generally limited to 30 days maximum] $12,675 per day unabated beyond the abatement date [generally limited to 30 days maximum] *2016 Inflationary Adjustment: 1.01636% Amputations / Hospitalizations 6 2
Fatality / Hospitalization / Amputation Reporting As of January 1, 2015: Employers must notify OSHA of: - Work-related fatality within 8 hours - Work-related in-patient hospitalization, amputation or loss of an eye within 24 hours Prior rule required employer to notify OSHA within 24 hours of: - Work-related fatality - In-patient hospitalizations of 3 or more employees 7 Fatality / Hospitalization / Amputation Reporting OSHA claims that the purpose is to engage with more employers. The new reporting requirement has drastically increased OSHA s workload: Nearly 1,000 reports per month So they developed a system of triaging reports for inspection necessary Current system falls under 3 categories: - Reports requiring inspection (fatalities, amputations, etc.) - Reports fit for Rapid Response Investigation (RRI) - Reports not covered by rule 8 How does OSHA define amputation? An amputation is the traumatic loss of a limb or other external body part Amputations include a part, such as: a limb or appendage, that has been severed, cut off, amputated (either completely or partially) fingertip amputations with or without bone loss medical amputations resulting from irreparable damage amputations of body parts that have since been reattached Amputations do not include: avulsions enucleations deglovings scalpings severed ears broken or chipped teeth 9 3
Nick suffers a finger injury on a saw in which his finger is partially cut threequarters of the way through below the first knuckle. A doctor is able to reattach the finger and he is released from the hospital the same day. Three days later, a follow up visit indicates that the fingertip is not likely to regain function and may develop infection problems so the finger is amputated below the first knuckle. During the first visit the doctor prepares a report indicating that the finger was partially amputated, but the company does not receive that report until 2 days after the incident. Is the company required to report this to OSHA? YES = NO = 10 Electronic Recordkeeping 11 Electronic Injury/Illness Reporting Goal: Improve Tracking of Workplace Injuries and Illnesses Requires reporting of illness and injury data to OSHA for publication on OSHA website: NOTE: OSHA has postponed this rule until December 1, 2017. Updates will be posted on the OSHA website when they are available. 12 4
13 Anti-Retaliation Rules 14 Employee Involvement (Anti-Retaliation Rules): Effective December 1, 2016 - Prohibits Retaliation For Reporting - Inform each employee how to report a work related injury or illness - Inform each employee of: Right to Report Employer is prohibited from discharging or discriminating for reporting - Establish reasonable procedure for reporting injury - Procedure is not reasonable if it would deter or discourage a reasonable employee from accurately reporting Initially prohibited most post accident testing Prohibits many incentive/disincentive programs Prohibits many immediate reporting of injury rules 15 5
Establish reasonable procedure 1. 1904.35(b)(1)(i) 2. You must establish a reasonable procedure for employees to report work related injuries and illnesses promptly and accurately. A procedure is not reasonable if it would deter or discourage a reasonable employee from accurately reporting a workplace injury or illness. 3. Examples given by OSHA in rulemaking 16 Whistleblower 17 18 6
22 Whistleblower Statutes Enforced by OSHA Affordable Care Act (ACA), Section 1558 Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) Energy Reorganization Act (ERA) Consumer Financial Protection Act of 2010 (CFPA), Section 1057 of the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 Consumer Product Safety Improvement Act (CPSIA) Moving Ahead for Progress in the 21st Century Act (MAP-21) International Safe Container Act (ISCA) National Transit Systems Security Act (NTSSA) Pipeline Safety Improvement Act (PSIA) Surface Transportation Assistance Act (STAA) Solid Waste Disposal Act (SWDA) Clean Air Act (CAA) Asbestos Hazard Emergency Response Act (AHERA) Federal Railroad Safety Act (FRSA) Seaman's Protection Act (SPA), as amended by Section 611 of the Coast Guard Authorization Act of 2010, P.L. 111-281 FDA Food Safety Modernization Act (FSMA), Section 402 Federal Water Pollution Control Act (FWPCA) Sarbanes-Oxley Act (SOX) Occupational Safety and Health Act (OSH Act), Section 11(c) Safe Drinking Water Act (SDWA) Wendell H. Ford Aviation Investment and Reform Act for the 21st Century (AIR21) Toxic Substances Control Act (TSCA) Number of Whistleblower Complaints Received by OSHA Statute FY FY FY FY FY FY FY FY FY FY FY 2006 2007 2008 2009 2010 2011 2012 2013 2014 2015 2016 ACA 0 0 0 0 4 14 14 18 26 28 34 AHERA 0 1 1 6 6 3 4 3 3 3 3 AIR21 52 50 85 92 75 66 58 90 114 116 96 CFPA 0 0 0 0 0 6 14 28 48 43 52 CPSIA 0 0 2 4 6 3 5 4 7 8 9 EPA 60 61 51 46 46 42 54 67 52 59 50 ERA 53 23 41 48 50 50 50 64 40 43 45 FRSA 0 1 45 145 201 341 384 356 353 276 302 FSMA 0 0 0 0 0 17 22 54 50 71 66 ISCA 0 0 0 0 1 0 0 0 0 0 0 MAP21 0 0 0 0 0 0 0 1 10 7 11 NTSSA 0 0 18 15 14 17 14 17 13 16 18 OSHA 1195 1301 1381 1267 1402 1665 1743 1707 1750 2026 2030 PSIA 7 1 3 3 2 6 2 7 6 4 8 SOX 234 231 235 228 201 148 170 179 146 156 174 SPA 0 0 0 0 0 5 9 5 7 15 10 STAA 241 297 357 306 306 315 346 368 473 417 447 Total 1842 1966 2219 2160 2314 2698 2889 2968 3098 3288 3355 20 OSHA Whistleblower Investigation Manual Includes provisions for release of information among the parties and under FOIA - Acknowledges the risk of workplace violence and allows an investigator to provide a summary of an employer s response, rather than a particular document, when there is a concern that the disclosure of a document might lead to a violent or threatening incident Revised the standard for when to conduct an investigation - Under the reasonable cause standard, OSHA must believe, after evaluating all of the evidence gathered in the investigation from the respondent, the complainant, and other witnesses or sources, that a reasonable judge could rule in favor of the complainant. - The evidence does not need to establish conclusively that a violation did occur Prior standard was that a preponderance of evidence must show a worker s whistle-blower actions led to the employer taking actions against the employee 7
Recommended Practices for Anti-Retaliation Programs The document issued by OSHA in January, 2017, outlines five key elements of an effective anti-retaliation program: 1. Management leadership, commitment, and accountability 2. System for listening to and resolving employees' safety and compliance concerns 3. System for receiving and responding to reports of retaliation 4. Anti-retaliation training for employees and managers 5. Program oversight 22 Workplace Violence 23 What Is Workplace Violence? OSHA includes the following as violent acts: - Physical violence - Threats of assault - Harassment - Intimidation - Other threatening disruptive behavior 8
Theories for Employer Liability There are various legal theories which impose legal obligations on employers to provide a safe working environment for their employees and guests. However, employers must meet their obligation of providing a safe work environment, while keeping in mind their other legal obligations. 25 Types of Workplace Violence OSHA establishes 4 classifications of workplace violence that describes the relationships between the perpetrator and the target: 1. Criminal Intent 2. Customer/Client/Patients 3. Co-Worker 4. Personal After the injury to Nick described in the first scenario, the company conducts an investigation as to the cause of the accident. The maintenance manager tells the company that Nick removed a guard from the machine, and Nick received a written warning the day before the accident for removing that same guard from the machine. As the company is questioning Nick regarding the accident, he informs management that co-employees are harassing him, and threatening him, because his accident is going to cause them to lose their safety incentive bonus. He claims that, in fact, his supervisor threatened to kick his a## due to the accident, refused to call 911, and told him he would drive him to the hospital to get treatment. Upon further investigation, the manager denies making this statement, but indicates that he recommended to the employee that he would drive Nick to the hospital because Nick would get there more quickly than waiting for an ambulance. The company has concluded that Nick committed a safety violation and intends to terminate him. Can the company lawfully terminate Nick for the safety violations? Yes = No = 27 9
Michael Best & Friedrich LLP 28 OSHA Recordkeeping, Anti-Retaliation and Regulation Update Charles Palmer Partner cbpalmer@michaelbest.com T. 262.956.6518 29 Disclaimer This presentation is intended for general information purposes only and does not constitute legal advice. Specific questions and requests for legal advice should be addressed to legal counsel. 30 10