Specifically it would have mandated:

1. All establishments with 250 or more employees in industries covered by the recordkeeping regulation to submit to OSHA annually their injury and illness data and information from their OSHA 300 Logs, 301 Incident Reports, and 300A Annual Summaries;
2. Establishments with 20-249 employees in select “high hazard industries” to annually submit information from their 300A Annual Summaries only;
3. All submissions to be done electronically, via OSHA’s secure website portal; and
4. Employers’ injury data would be publicized in a public database.

It took effect on Aug. 10, 2016. However, its implementation was plagued with delays and court challenges.

Now, thanks to the Trump Administration, it is largely moot. On Jan. 25, 2019, OSHA published its Final Rule modifying its electronic reporting requirements. Effective Feb. 25, 2019, employers with 250 or more employees will no longer be required annually to electronically submit to OSHA information from Form 300 (Log of Work-Related Injuries and Illnesses) and Form 301 (Injury and Illness Incident Report). The final rule does not eliminate the requirement of these employers to electronically submit information from OSHA Form 300A (Summary of Work-Related Injuries and Illnesses). Further, all OSHA-covered employers are still required to maintain OSHA Forms 300 and 301 on-site, and OSHA will continue to obtain these forms as needed through inspections and enforcement actions.

According to OSHA, these changes “will allow OSHA to improve enforcement targeting and compliance assistance, decrease burden on employers, and protect worker privacy and safety.”

Bravo, OSHA!

If you have any questions about your company’s recordkeeping obligations under OSHA, please contact one of our Occupational Safety & Health attorneys.

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Current protocols require employer consent prior to OSHA’s use of a drone. Yet, do you want to be the employer who says no? As pointed out by Tammy McCutchen (writing for The Federalist Society, c/o Walter Olson’s Overlawyered), denying an OSHA investigatory request is the quickest way to become an OSHA target as an uncooperative (and presumptively unsafe) employer:

Employers who refuse such consent – who exercise their Fourth Amendment right and require DOL to obtain a search warrant – risk the ire of the DOL, with serious consequences. Nothing is more likely to put a target on an employer’s back for multiple and frequent future investigations than sending a DOL investigator away from your doors. Refusing consent will label you at the DOL as a bad faith employer that deserves closer scrutiny.

Which is not to suggest that these robotic investigations are not without risk. Anything in plain sight is fair game in an OSHA investigation. Once you give OSHA permission to fly its drone, any violations it spies will be cited.

Moreover, the memo contains several key omissions. It offers no protections for an employer’s trade secrets, or other proprietary or confidential information. It says nothing about employees’ privacy. It does not detail how videos will be stored, for how long, and who will have access. It does not exempt the videos from a FOIA request made by a competitor or labor union.

In all but the most extreme of circumstances, I always advise employers to cooperate with DOL investigators, provide requested documents, and allow on-site investigations. Yet, when OSHA comes knocking and requests that it fly a drone as part of its investigation, you will need to call your employment counsel, collectively weigh the pluses of avoiding OSHA’s ire (and a search warrant) versus the minuses of OSHA’s lack of protections, and decide whether to permit the remote recording.

* Photo by Jared Brashier on Unsplash

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Last week, OSHA published a memo, which specifically clarifies that it “does not prohibit workplace safety incentive programs or post-incident drug testing.” [emphasis in original]

What does this mean?

Incentive Programs

One example of an incentive programs is one that rewards workers for reporting near-misses or safety hazards. According to OSHA, “Positive action taken under this type of program is always permissible.”

Another example rewards employees with a prize or bonus at the end of an injury-free month, or evaluates (and bonuses) managers based on their work unit’s lack of injuries. According to OSHA, these programs are also permissible, “as long as they are not implemented in a manner that discourages reporting.”

According to OSHA:

If an employer takes a negative action against an employee under a rate-based incentive program, such as withholding a prize or bonus because of a reported injury, OSHA would not cite the employer [for retaliation] as long as the employer has implemented adequate precautions to ensure that employees feel free to report an injury or illness.

What are “adequate precautions to ensure that employees feel free to report an injury or illness?”

• An incentive program that rewards employees for identifying unsafe conditions in the workplace;
• A training program for all employees to reinforce reporting rights and responsibilities and emphasizes the employer’s non-retaliation policy;
• A mechanism for accurately evaluating employees’ willingness to report injuries and illnesses.

Post-Accident Drug Testing 

According to OSHA, “most instances of workplace drug testing are permissible.” Examples of permissible drug testing include:

• Random drug testing.
• Drug testing unrelated to the reporting of a work-related injury or illness.
• Drug testing under a state workers’ compensation law.
• Drug testing under other federal law, such as a U.S. Department of Transportation rule.
• Drug testing to evaluate the root cause of a workplace incident that harmed or could have harmed employees. If the employer chooses to use drug testing to investigate the incident, the employer should test all employees whose conduct could have contributed to the incident, not just employees who reported injuries.

Employers no longer need a nexus between the possible or suspected drug use and the reported injury or illness.

If you have questions about implementing or modifying a workplace safety incentive program, or a post-accident drug testing program, contact Meyers Roman’s Occupational Safety & Health team.

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The post Federal court denies injunction against new OSHA retaliation rules appeared first on Ohio OSHA Law Blog.

       

First, it announced that it has delayed enforcement, until December 1, of the anti-retaliation provisions of its injury and illness tracking rule. According to OSHA, “The anti-retaliation provisions were originally scheduled to begin Aug. 10, 2016, but were previously delayed until Nov. 10 to allow time for outreach to the regulated community.” While I hate to be appear cynical, I can’t help but think that the pending lawsuit challenging the legality of these rules has something to do with this delay.

Second, even though OSHA keeps delaying these rules, it continues its efforts to educate employers and employees about them. On October 19, OSHA published a memorandum and example scenarios interpreting these new anti-retaliation provisions.

So, let’s take a look at the types of scenarios OSHA believes will violate, and will not violate, its new anti-retaliation provisions.

Disciplinary Programs

The rule prohibits disciplining employees simply because they report work-related injuries or illnesses without regard to the circumstances of the injuries or illnesses, such as automatically suspending workers who report an injury or assigning them points that have future employment consequences. The rule also prohibits disciplining an employee who reports a work-related injury or illness under the pretext that the employee violated a work rule if the real reason for the discipline was the injury or illness report.

OSHA’s Examples of illegal retaliation:

• Employee is injured when he is stung by a bee at work, and he reports the injury to Employer. Employer disciplines Employee for violating a work rule requiring employees to “maintain situational awareness.” Employer only enforces the rule when employees get hurt.
• Employee twists his ankle at work but does not immediately realize that he is injured because his ankle is not sore or swollen, and therefore he does not report the injury to Employer. The next morning, Employee’s ankle is sore and swollen, and he realizes he has the kind of injury he is required to report to Employer. He reports the injury to the employer that day. Employer disciplines Employee for failing to report his injury “immediately” as required by Employer’s injury reporting rules.

OSHA’s Examples of Non-Retaliation:

• Employee reports a hand injury that she sustained while operating a saw after bypassing the guard on the saw, contrary to the employer’s work rule. Employee’s hand injury required her to miss work for two days. Employer disciplined Employee for bypassing the guard contrary to its instructions. Employer regularly monitors its workforce for safety rule violations and disciplines employees who bypass machine guards regardless of whether they report injuries.
• Employee twists her ankle at work but does not immediately realize that she is injured because her ankle is not painful or swollen, and therefore she does not report the injury to Employer. The next morning, Employee’s ankle is painful and swollen and she realizes it is the kind of injury she is required to report to Employer as soon as practicable. However, Employee does not report the injury after this realization, although she easily could have, and instead reports it several weeks later. Employer disciplines Employee for failing to report her injury as soon as practicable after realizing she has the kind of injury she is required to report.

Incentive Programs

The rule prohibits using incentive programs to penalize workers for reporting work-related injuries or illnesses. If an employee reports an injury or illness, and the employer subsequently denied a benefit as part of an incentive program, this denial may constitute retaliatory action against the employee for exercising his or her right to report an injury or illness.

OSHA’s Examples of illegal retaliation:

• Employer informs its employees that it will hold a substantial cash prize drawing for each work group at the end of each month in which no employee in the work group sustains a lost-time injury. Employee reports an injury that she sustained while operating a mechanical power press. Employee did not violate any employer safety rules when she sustained her injury. Employee’s injury requires her to miss work for two days. Employer cancels the cash prize drawing for that month for Employee’s work group because of Employee’s lost-time injury.
• Employer informs its employees that it will hold a substantial cash prize drawing for each work group at the end of each month in which all members of the work group comply with applicable safety rules, such as wearing required fall protection. Employee sustains a lost-time injury when he falls from a platform while not wearing required fall protection. Employer cancels the cash prize drawing for Employee’s work group that month ostensibly because Employee failed to wear required fall protection. However, Employer’s employees routinely fail to wear required fall protection but the only time Employer cancels the cash prize drawing is when an employee reports an injury.

OSHA’s Examples of Non-Retaliation:

• Employer informs its employees that it will hold a substantial cash prize drawing for each work group at the end of each month in which all members of the work group comply with applicable safety rules, such as wearing required fall protection. Employee sustains a lost-time injury when he falls from a platform while not wearing required fall protection, and he reports the injury to Employer. Employer cancels the cash prize drawing for Employee’s work group that month because Employee failed to wear required fall protection. Employer actively monitors its workforce for compliance with applicable work rules and cancels the cash prize drawings when it discovers work rule violations regardless of whether the employee who violated the work rule also reported an injury.
• Employer holds a party for all employees who complete a safety training course. Employee failed to attend the training because she was absent from work due to a work-related injury that she reported. Employer excluded Employee from the training-completion party because she did not complete the training. Employer consistently excluded all employees who failed to complete a training course from the training-completion party regardless of why they failed to complete the training, including those who were on vacation or absent because of a non-work-related injury or illness.

Drug Testing

OSHA plainly states that the rule does not prohibit drug testing of employees, including drug testing pursuant to the Department of Transportation rules or any other federal or state law (such as state workers’ compensation law). It only prohibits using drug testing, or the threat of drug testing, to retaliate against an employee for reporting an injury or illness. Employers may conduct post-incident drug testing if there is a reasonable possibility that employee drug use could have contributed to the reported injury or illness. However, if employee drug-use could not have contributed to the injury or illness, post-incident drug testing could constitute prohibited retaliation, as it would discourage injury reporting without contributing to the employer’s understanding of why the injury occurred .

OSHA’s examples of illegal retaliation:

• Employer required Employee to take a drug test after Employee reported work-related carpal tunnel syndrome. Employer had no reasonable basis for suspecting that drug use could have contributed to her condition, and it had no other reasonable basis for requiring her to take a drug test. Rather, Employer routinely subjects all employees who report work-related injuries to a drug test regardless of the circumstances surrounding the injury. The state workers’ compensation program applicable to Employer did not address drug testing, and no other state or federal law requires Employer to drug test employees who sustain injuries at work.
• Employer requires all employees who report lost-time injuries to take a drug test regardless of whether drug use could have contributed to the injury because the drug testing requirement is included in the collective bargaining agreement at the workplace. Employer drug tests Employee (who is covered by the collective bargaining agreement) when she reports a lost-time injury that could not reasonably have been caused by drug use, such as a bee sting or carpal tunnel syndrome. The employer had no reasonable basis for suspecting that drug use could have contributed to her injury and had no other reasonable basis for requiring the test.

OSHA’s Examples of Non-Retaliation:

• Employee was injured when he inadvertently drove a forklift into a piece of stationary equipment, and he reported the injury to Employer. Employer required Employee to take a drug test.
• Employer drug tests all employees who report work-related injuries to the employer to get a 5% reduction in its workers’ compensation premiums under the state’s voluntary Drug-Free Workplace program. Employer drug tests Employee when she reports a work-related injury that could not reasonably have been caused by drug use, such as a bee sting or carpal tunnel syndrome.
• Employer requires all employees who report lost-time injuries to take a drug test because the employer’s private insurance carrier provides discounted rates to employers that implement such a drug-testing policy. The relevant rate discount provisions in the private policy are identical to those in the applicable state workers’ compensation law. Employer drug tests Employee when she reports a lost-time injury that could not reasonably have been caused by drug use, such as a bee sting or carpal tunnel syndrome.

If OSHA’s new anti-retaliation rules go live, employer will have to study these examples as if they are gospel, as they will help employers navigate the increasingly complex world of OSHA compliance so as to avoid costly and complex retaliation complaints. In the meantime, if you have not recently had your friendly neighborhood OSHA-knowledgeable attorney give your workplace safety program the once over, there is no time like the present,

The post Just because OSHA has delayed its anti-retaliation rules doesn’t mean you can sleep on them appeared first on Ohio OSHA Law Blog.

       

Confidentiality, non-disparagement, and other “gag” provisions in employee separation and settlement agreements have been under attack by various federal agencies, including the EEOC and the NLRB. Now, OSHA also has joined the fray.

Last month, OSHA published new guidance, part of its revisions to its Whistleblower Investigations Manual, which seeks to free employees to report safety and other violations to the government.

Nothing in this Agreement is intended to or shall prevent, impede or interfere with complainant’s non-waivable right, without prior notice to Respondent, to provide information to the government, participate in investigations, file a complaint, testify in proceedings regarding Respondent’s past or future conduct, or engage in any future activities protected under the whistleblower statutes administered by OSHA, or to receive and fully retain a monetary award from a government-administered whistleblower award program for providing information directly to a government agency.

The post Will OSHA invalidate your settlement agreement? appeared first on Ohio OSHA Law Blog.

       

For most of those OSHA-enforced anti-retaliation statutes, OSHA has made employers’ anti-retaliation compliance a whole lot more difficult.

On January 28 of this year, OSHA published a new Whistleblower Investigations Manual [pdf]. It is the guidebook OSHA investigators use to determine whether the agency should pursue or dismiss a retaliation case.

In that Manual, OSHA both significantly decreased the showing that a complaining party must show to establish a whistleblower retaliation claim, while, at the same time, significantly increased the burden an employer must meet to demonstrate that it took the challenged adverse action for a legitimate business reason and escape liability

The new, lower standard in whistleblower retaliation investigations is whether “OSHA has reasonable cause to believe a violation occurred.” Indeed, OSHA need only “find reasonable cause that a complaint has merit” to conclude that the employer violated the statute.

How low is this burden? I’ll let OSHA explain:

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.… Because OSHA makes its reasonable cause determination prior to a hearing, the reasonable cause standard is somewhat lower than the preponderance of the evidence standard that applies following a hearing. Accordingly, OSHA’s investigation must reach an objective conclusion – after consideration of the relevant law and facts – that a reasonable judge could believe a violation occurred. The evidence does not need to establish conclusively that a violation did occur.

In other words, OSHA need not find much in support of a complaint to conclude that it has reasonable cause to believe a violation occurred. It’s about as low of an evidentiary standard as one could have.

Among other statutes, this lower standard of proof applies to The Energy Reorganization Act, the Wendell H. Ford Aviation Investment and Reform Act for the 21st Century, the Surface Transportation Assistance Act, the Sarbanes Oxley Act of 2002, the Pipeline Safety Improvement Act of 2002, the Federal Railroad Safety Act, the National Transit Security System Act, the Consumer Product Safety Improvement Act of 2008, the Affordable Care Act, the Consumer Financial Protection Act of 2010, the Seaman’s Protection Act, the FDA Food Safety Modernization Act, and the Moving Ahead for Progress in the 21st Century Act. Because of the wide range of industries these statutes impact, the odds are pretty good that this change impacts your business.

All is not lost for employers, however, because the Manual gives employers an out (albeit a narrow one), even if OSHA finds reasonable cause. Again, I’ll let OSHA explain:

Under these statutes, even if there is reasonable cause to believe that protected activity was a contributing factor to the adverse action, the respondent may escape liability (and OSHA will issue non-merit findings) if there is clear and convincing evidence that the respondent would have taken the same action in the absence of the protected activity.

As low of a standard “reasonable cause” is, that’s how high a standard clear and convincing is. It is the highest civil liability standard there is.

What does all this mean for employers? It means that OSHA is having its retaliation cake and eating it too. For all of these whistleblower statutes, OSHA will find a violation on the most minimal of showings, and yet require employers to jump the highest civil evidentiary hurdle possible to avoid the same. And you know what? That’s just not fair. Instead of making it impossible for an employer in all but the clearest of cases to avoid liability, it should strive for a level playing field. Instead, OSHA has tilted the playing field so strongly in a employee’s favor that, if an employee files a whistleblower complaint under one of these “contributing factor” statutes, the employer best be prepared to litigate or pay up, because, in all the but the clearest of cases, OSHA has made it increasingly difficult, if not nearly impossible, for an employer to win. I understand the importance of protecting whistleblowers and creating an environment in which employees feel comfortable coming forward with complaints, but there has to be a fairer means to accomplish this goal.

The post OSHA’s new Whistleblower Investigations Manual Will Be a Huge Burden for Employers appeared first on Ohio OSHA Law Blog.

       

Allow me to pause while this sinks in.

While this prohibition doesn’t appear in the the actual text of the final rule, it does prominently appear in OSHA’s interpretation of the provision which prohibits employers from retaliating against employees who reporting a work-related injury or illness:

OSHA believes the evidence in the rulemaking record shows that blanket post-injury drug testing policies deter proper reporting.… [T]his final rule does not ban drug testing of employees. However, the final rule does prohibit employers from using drug testing (or the threat of drug testing) as a form of adverse action against employees who report injuries or illnesses. To strike the appropriate balance here, drug testing policies should limit post-incident testing to situations in which employee drug use is likely to have contributed to the incident, and for which the drug test can accurately identify impairment caused by drug use.… 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.

“What about workers’ compensation laws,” you say? “State law requires post-accident testing. What gives?” OSHA hears your cries, and has an answer for you:

A few commenters also raised the concern that the final rule will conflict with drug testing requirements contained in workers’ compensation laws. This concern is unwarranted. 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 the final rule would not prohibit such testing. This is doubly true because Section 4(b)(4) of the Act prohibits OSHA from superseding or affecting workers’ compensation laws.

Make no mistake, this interpretation is huge for employers. As a result of this new reporting standard, employer policies that require post-accident drug testing will face scrutiny by OSHA, and OSHA will cite you for any policy that mandates post-accident testing without consideration of the specific facts and circumstances of the injury. Further, OSHA will deem retaliatory any employer discipline for a failed or refused post-accident test unless the drug use is likely to have contributed to the accident and for which the test can accurately identify pre-accident drug-related impairment. That’s a high bar for employers to clear.

This rule was to take effect on August 10, but OSHA has stated that it is delaying enforcement until November 1. If you have a drug testing policy or otherwise engage post-accident testing in your workplace, now is the time to review your policies and practices with your employment counsel. This issue is very much on OSHA’s radar, which means it must be on your radar also.

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On August 1, OSHA’s penalties will increase, across the board, by a whopping 78 percent. What do these increases look like?

• For serious, other-than-serious, and posting violations, the maximum penalty will increase from $7,000 per violation to $12,471 per violation.
• For failures to abate, from $7,000 per day beyond the abatement date to $12,471 per day beyond the abatement date.
• For willful or repeated violations, from $70,000 per violation to $124,709 per violation.

While the increase will not take effect until August 1, it will apply retroactively to violations that occurred as far back as November 2, 2015. Moreover, these penalties will continue to increase annually for inflation.

What does this mean for your business? Can your business afford to pay hundreds of thousands of dollars in citations? Because of these increased penalties, companies need to more prepared than ever for an OSHA inspection. Employers cannot wait until OSHA arrives at the door to prioritize safety compliance. Employers need to get their workplace-safety houses in order now, before OSHA arrives. The cost this responsibility is just too steep to ignore.

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