Get the Record Straight: Latest on OSHA’s E-Recordkeeping and Anti-Retaliation Rule [Webinar Recording]

On May 16, 2017, Amanda R. Strainis-Walker and Dan C. Deacon of Conn Maciel Carey’s national OSHA Practice Group, presented a webinar regarding OSHA’s E-Recordkeeping and Anti-Retaliation Rule.”  Here is a link to a recording of the webinar.
OSHA’s controversial new Electronic Injury and Illness Recordkeeping data submission rule, along with its new Anti-Retaliation elements has thus far survived a barrage of negative stakeholder comments during the rulemaking, multiple enforcement deferrals, and a legal challenge complete with a preliminary injunction motions, and continuing legal challenges.  As of today, all elements of the rule are in effect, including limits on post-injury drug testing and safety incentive programs, and barring a change before July 1, 2017, thousands of employers will, for the first time, be required to submit injury and illness recordkeeping data to OSHA, possibly for publishing online.

Participants in this complimentary webinar learned about:

  • Requirements of OSHA’s Electronic Injury Recordkeeping data submission
  • The status of OSHA’s new database to receive injury data
  • OSHA’s policy on publishing the injury data received from employers
  • The Anti-Retaliation Elements of the E-Recordkeeping Rule
  • The status and future of this new Final Rule
  • The fate of “Volks” Recordkeeping Statute of Limitations Rule

This was the fifth webinar event in Conn Maciel Carey’s 2017 OSHA Webinar Series.  Plan to join us for the remaining complimentary monthly OSHA webinars.  Click here for the full schedule and program descriptions for the 2017 series, and/or to register for the entire 2017 series, click here to send us an email request, and we will get you registered.

If you missed any of our prior webinars in the 2017 or past years’ OSHA Webinar Series, here is a link Conn Maciel Carey’s Webinar Archive.

“OSHA’s PSM Standard & EPA’s RMP Rule: Rulemaking, ‘Interpretations’ and Enforcement” [Webinar Recording]

On March 16th, Eric J. Conn and Amanda Strainis-Walker of Conn Maciel Carey’s national OSHA Practice Group delivered a webinar regarding “OSHA’s PSM Standard & EPA’s RMP Rule: Rulemaking, ‘Interpretations’ and Enforcement” as part of the Firm’s 2016 OSHA Webinar Series.

Following the tragic West Fertilizer explosion in 2013, President Obama issued an Executive Order directing OSHA, EPA and other agencies to “modernize” the manner in which the government regulates chemical manufacturing processes. OSHA and EPA are taking sweeping actions in response to this Executive Order, from enforcement initiatives to rulemaking efforts to overhaul the PSM and RMP regulations, as well as some controversial rulemaking by interpretation letter. This webinar dove deep into the changes we have already seen, and those making their way through the rulemaking process.

Participants learned about: Continue reading

Expect More Comprehensive OSHA Inspections Under a New “Enforcement Weighting System”

By Amanda R. Strainis-Walker and Eric J. Conn

Over the course of the next year, employers can expect to see longer, more comprehensive OSHA inspections that focus on complex safety and health hazards. This change is associated with OSHA’s new enforcement protocol it refers to as the “Enforcement Weighting System” that uses a new metric called the “Enforcement Unit.”

Historically, OSHA operated under the assumption that more inspections are better. OSHA’s philosophy was that the more workplaces that OSHA is able to inspected, the greater the impact OSHA would have on safety and health, and the more employees it would be able to protect. At the end of every year, the national office would produce data and graphs showing the number of inspections, and gave no consideration for the different types of inspections or the range of complexity of the issues faced in each inspection. It was the classic quota protocol with the classic weaknesses that quota cause – driving enforcement to the simplest, quickest hitting inspections available.

A traditional inspection at a small construction site can last as little as a couple of hours with only one compliance officer, whereas a wall-to-wall inspection at a petrochemical manufacturing plant could last days, if not months, requiring multiple compliance officers and specialists. Under OSHA’s historical tracking system, both of those types of inspections were counted as the same unit of Inspection Weighting 2measure – one inspection. To account for this wide variation in resources that inspections can consume, in personnel and man hours, OSHA has adopted the new Enforcement Weighting System.

The new tracking system kicked in at the start of the new federal fiscal year. OSHA piloted the system over the two previous fiscal years. At the core of the new Enforcement Weighting System is the introduction of a new unit of measure for inspections – the Enforcement Unit. Different types of inspections are assigned a different number of Enforcement Units. For example, the simple, small construction site inspection would be assigned a single Enforcement Unit, whereas the wall to wall chemical facility inspection would receive seven Enforcement Units.

Enforcement Units will be the new metric that OSHA’s national office evaluates at the end of the fiscal year and tracks from year-to-year to evaluate enforcement performance of its various regions and area offices.

Assistant Secretary of Labor for OSHA, Dr. David Michaels, explained in the Memorandum announcing the Enforcement Weighting System:

While [the old] metric served a useful purpose, it penalized those field managers that took on more complex inspections that require a great amount of CSHO effort.

The new Enforcement Weighting System is designed to Continue reading

February 1st Deadline to Certify and Post the OSHA 300A: Four Common Mistakes Employers Make

By Amanda R. Strainis-Walker and Eric J. Conn of Conn Maciel Carey’s national OSHA Practice Group

February 1st marks an important OSHA injury and illness recordkeeping annual deadline for all U.S. employers, except those with ten or fewer employees or those whose NAICS code is for the set of low hazard industries exempted from OSHA’s injury and illness recordkeeping requirements, such as dental offices, advertising services, and car dealers (see the exempted industries at Appendix A to Subpart B of Part 1904).

Specifically, by February 1st every year, employers must:

  • Review their OSHA 300 Log(s);
  • Verify the entries on the 300 Log are complete and accurate;
  • Correct any deficiencies identified on the 300 Log;
  • Use the injury data from the 300 Log to calculate an annual summary of injuries and illnesses and complete the 300A Annual Summary Form; and
  • Certify the accuracy of the 300 Log and the 300A Summary Form.

The Form 300A is a RK 2summation of the workplace injuries and illnesses recorded on the OSHA 300 Log during the previous calendar year, as well as the total hours worked that year by all employees covered by the particular OSHA 300 Log.

Four Common 300A Mistakes that Employers Make

We see employers make the following four common mistakes related to this annual injury and illness Recordkeeping duty: Continue reading

OSHA’s New Injury & Fatality Reporting Rule: Time to Add OSHA to Your Speed Dial

By Eric J. Conn and Amanda R. Strainis-Walker

On New Year’s Day 2015, the Occupational Safety and Health Administration’s (OSHA) new injury and fatality reporting rule became effective, significantly revising the triggering events for reporting workplace accidents to OSHA under the Agency’s Injury and Illness Recordkeeping regulations at 29 C.F.R. 1910.104, et seq.

New Injury and Illness Reporting Rule

The new regulations differ from the long-standing incident reporting rule in four ways:

  1. Lower the threshold for proactively reporting a catastrophic incident from the hospitalization of three or more employees to the hospitalization of a single employee;Reporting 3.JPG
  1. Add amputations (including partial amputations) and loss of an eye to the types of injuries that employers must proactively report;
  1. Introduce an internet portal for employers to submit reportable events; and
  1. Require publication of the reporting events on OSHA’s public website.

Requirements of the New Reporting Rule. The reporting rule has been long-referred to informally as the “Fat-Cat” rule because it requires employers to report to OSHA all incidents that result in an employee fatality (Fat) or a catastrophe (Cat). The new regulation redefines catastrophe. Historically, a catastrophe had been defined as an incident that resulted in the overnight hospitalization for treatment of three or more employees.

The Agency views the new report triggering events as indicative of serious hazards at a workplace. Assistant Secretary of Labor for OSHA David Michaels explained that:

“hospitalizations and amputations [are] sentinel events, indicating that serious hazards are likely to be present at a workplace and that an intervention is warranted to protect the other workers at the establishment.”

In addition to lowering the threshold from three to one employee hospitalizations, OSHA also changed the definition of “hospitalization.” Historically, an employee’s overnight hospital stay triggered the reporting requirement. Under the new rule, whether the hospitalization is a reportable event turns not on whether the employee stays overnight, but rather, whether the employee is formally admitted to the “in-patient” service of the hospital or clinic. The visit, however, must involve medical care after the in-patient admission. A hospital visit only for observation or diagnostic testing, even if it involves in-patient admission, does not constitute a reportable event.

The concepts of “formal admission” and “in-patient service” seem to be causing significant confusion in the new rule’s early stages. While OSHA continues to Continue reading