There were some significant changes to the Occupational Safety and Health Administration (OSHA) regulatory environment in 2018 that will impact how the agency operates during the next few years, and how employers will be regulated. Here are a few of the more important changes.
Electronic reporting of OSHA 300 logs is out
On July 30, OSHA issued a notice of proposed rulemaking that would eliminate an Obama-era requirement that employers electronically submit OSHA 300 and 301 injury records to a public recordkeeping site. While the rule change is pending, the reporting obligation is suspended.
Employers with more than 20 employees would still be required to electronically submit OSHA Form 300A, which is the summary of work-related injuries and illnesses. It provides only aggregate injury data, not specifics about each injury. The main purpose of the proposed rule change is to protect sensitive worker information from potential Freedom of Information Act (FOIA) requests.
For example, Form 301 requires employers to collect sensitive information, such as, descriptions of injuries and body parts affected with or without the worker’s consent. OSHA determined that the electronic submission of Forms 300 and 301 was an undue burden on employers that did not justify the risk of disclosing sensitive worker information. The comment period ended Sept. 28, and 170 comments were submitted.
Site-Specific Targeting is back in
On Oct. 17, The U.S. Department of Labor announced OSHA was initiating a Site-Specific Targeting Program. The program will use injury and illness information that employers electronically submitted for 2016. The primary purpose of the program is to target high-injury rate employers for inspection and ensure that employers are submitting their 300A Form. OSHA will target employers that it believes should have provided Form 300A data, but failed to do so, and employers with high incident rates.
The inspections resulting from the program will be comprehensive. This is essentially a reinstatement of a prior OSHA targeting program, with the added inspection risk for employers with more than 20 employees who did not file in 2016, or do not file electronic 300A forms in the future. Employers should review their OSHA incident rates and compare them with their industry’s average to determine whether they may be subject to the Site-Specific Program inspections. The OSHA 300A form should be audited before filing to avoid over reporting.
OSHA backtracks on anti-retaliation rules
Recently, OSHA clarified its position on workplace safety incentive programs and post-incident drug testing under 29 C.F.R. § 1904.35(b)(1)(iv). In 2016, OSHA published a final rule prohibiting employers from retaliating against employees who reported work-related injuries and illnesses. This rule impacted workplace safety incentive programs and post-incident drug testing because it viewed these as potential forms of retaliation, if a reported injury was the only trigger for such a program.
In its clarifying memorandum, OSHA concluded that the 2016 rule does not prohibit incentive programs and post-incident drug testing. Its reasoning was that the incentive programs and post-incident drug testing are implemented to promote workplace safety and health.
Repeat citation standard has changed
The Occupational Safety and Health Review Commission (OSHRC) has recently heightened OSHA’s burden to prove repeat violations.
OSHA issued a citation to Angelica Textile Services, including four repeat violations. On July 24, OSHRC characterized these violations as “serious” rather than “repeat” violations. In the decision, the commission announced a new standard for repeat violations. Before the Angelica decision, OSHA only had to show substantial similarity in the type of equipment, process, or regulation involved in both citations. Now, a showing of substantial similarity can be rebutted by the company showing “disparate conditions and hazards associated with these violations of the same standard.” In addition, a company’s abatement efforts may also warrant a reduction in penalty.
For example, Angelica’s previous citations were characterized by a complete failure to comply. But after the company’s abatement efforts, the alleged “repeat” violations were only characterized by minimal deficiencies. Because of the changes made after the first citation, the OSHRC concluded that the violations were not “repeat” violations.
Employers should document comprehensive abatement efforts when they are cited for OSHA violations to ensure they are not later struck with enhanced, repeat violation penalties. Serious citations carry a penalty of up to $12,934 while a repeat penalty can be as much as $129,336.
General industry standards application to construction may be invalid
When the startup standards were first adopted, the construction standards only applied to the construction industry, the maritime standards only applied to maritime work, and the manufacturing standards only applied to manufacturing. However, several months after the initial startup standards were approved, OSHA decided that the startup standards could apply to all industries.
The OSHRC concluded that this was improper because the eyewash standard did not go through proper Notice and Comment Rulemaking to validly be applied to the construction industry. This decision is based partly on fairness. Employers in the construction industry never had the opportunity to comment on a proposed rule in the manufacturing industry because they would not expect it applied to them.
There are other standards that did not go through the appropriate notice and comment rulemaking procedures, so speak to your legal counsel before accepting a citation until OSHA resolves this issue.
The statute of limitations may block citations of alleged continuing violations
In Delek Refining v. OSHRC, the Fifth Circuit Court of Appeals recently held that the company’s failure to take certain actions in 2005 was barred by the statute of limitations. 29 U.S.C. § 658(c) states, “no citation may be issued under this section after the expiration of six months following the occurrence of any violation.
The company’s argument was based on AKM LLC v. Sec’y of Labor (Volks). Volks addressed the question whether injury recordkeeping violations that involved OSHA 300 log entries more than six (6) months prior to the issuance of a citation were barred by 29 U.S.C. § 658(c).
In Delek, a refinery was cited for certain Process Hazard Analysis deficiencies, which were documented years earlier. The Fifth Circuit found Volks persuasive, stating “just as a single violation occurred in Volks when the company failed to create the records within the prescribed time-period, so too (did the violations in this place) ‘occur()’ within the meaning of Section 658(c) when an employer does not ‘promptly’ or ‘timely’ do as (the regulation) directs.” Although the court concluded that the violations were time barred in this case, the court agreed with the statement in Volks that some safety violations could extend the statute of limitations when they involve continuing, unlawful risks to employee health and safety.
The result in Delek suggests that OSHA cannot merely rely on past documentation to issue a citation. OSHA must show a current violation and hazard to employees from that violation within the last six months. This may be relevant in the case of OSHA citations to any standard where there is a documentation, training, evaluation, or certification requirement in which OSHA alleges a continuing violation for omissions, or mistakes that occurred more than six months earlier.
OSHA expansion of injury inspections based on an emphasis program or 300 logs may be prohibited
On Oct. 9, the Eleventh Circuit Court of Appeals in Georgia affirmed a lower court’s decision to vacate a judicially issued inspection warrant. The issue arose after an employer reported an electrical accident to OSHA, and OSHA attempted to conduct a comprehensive inspection of the entire facility based on the company’s recordkeeping forms. In the initial inspection, OSHA found a number of hazards that the “Poultry Regional Emphasis Program” identified as concerns. However, the company denied OSHA’s request to conduct a comprehensive inspection.
The denial required OSHA to obtain an inspection warrant. The Eleventh Circuit found that OSHA failed to demonstrate probable cause for its expanded inspection warrant. The company’s recordkeeping forms did not amount to reasonable suspicion that violations existed. Simply reporting an injury on an OSHA 300 form does not lead to the conclusion that the employer is in violation of an OSHA standard, and it does not require a full scale investigation. In addition, the court recognized that “the existence of a hazard does not necessarily establish the existence of a violation, and it is a violation which must be established by reasonable suspicion in the application” for a warrant.
OSHA may no longer be able to expand the scope of an inspection simply based on an emphasis program. This decision may significantly limit OSHA’s comprehensive inspection authority, not just within the Eleventh Circuit, but nationwide.
