More than two years after OSHA published the E-Recordkeeping Rule, the agency finally revealed some of its plans for how it will utilize employers’ 300A injury data collected under the new Rule. In late October 2018, OSHA launched its new Site-Specific Targeting Enforcement Program, which outlines how the agency will select non-construction establishments for programmed inspection. OSHA will create targeted inspection lists based on employers’ higher than average Days Way, Restricted or Transfer (“DART”) injury rates. OSHA will also include a random sample of establishments with lower than expected injury rates for quality control. Thus, all employers covered by OSHA’s E-Recordkeeping Rule may be subject to an SST inspection.
On December 12, 2017, Eric J. Conn and Micah Smith of Conn Maciel Carey’s national OSHA Practice Group presented a webinar regarding “OSHA’s PSM Standard & EPA’s RMP Rule.”
Following the tragic West Fertilizer explosion in 2013, then-Pres. Obama issued an Executive Order directing OSHA, EPA and other agencies to “modernize” how the government regulates chemical manufacturing. In response, OSHA and EPA took sweeping actions, from rulemaking and interpretation letters to overhaul the PSM and RMP regulatory landscape, to new enforcement initiatives, like a the Chemical Facilities and Petroleum Refineries PSM National Emphasis Program. When Pres. Trump took office, several key process safety and environmental regulations were delayed or repealed, new political leadership was installed, and enforcement policies were reexamined. This webinar will review the status and likely future of OSHA’s PSM and EPA’s RMP regulatory programs.
During this webinar, participants learned:
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.
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
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 measure – 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
This is your annual reminder about the important annual February 1st deadline to prepare, certify and post your OSHA 300A Annual Summary of workplace injuries and illnesses, 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).
This February 1 requirement to prepare, certify and post 300A forms should not be confused with OSHA’s new Electronic Recordkeeping Rule. The February 1st deadline is only about the internal posting of 300A data for your employees’ eyes. The E-Recordkeeping Rule, on the other hand, is a new requirement for certain employers to electronically submit data from their 300A Annual Summary forms to OSHA through a web portal. Depending on how OSHA resolves an internal policy debate and the outcome of legal challenges from labor groups, that data may also be shared publicly.
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 summation 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:
- Not having a management representative with high enough status within the company “certify” the 300A;
- Not posting a 300A for years in which there were no recordable injuries;
- Not maintaining a copy of the certified version of the 300A form; and
- Not updating prior years’ 300 Logs based on newly discovered information about previously unrecorded injuries or changes to injuries that were previously recorded.
Certifying the 300 Log and 300A Annual Summary
The 300 Log and the 300A Annual Summary Form are required to be “certified” by a “company executive.” Specifically what the company executives are certifying is that they:
- Personally examined the 300A Annual Summary Form;
- Personally examined the OSHA 300 Log from which the 300A Annual Summary was developed; and
- Reasonably believe, based on their knowledge of their companies’ recordkeeping processes that the 300A Annual Summary Form is correct and complete.
A common mistake employers make is to have a management representative sign the 300A Form who is not at a senior enough level in the company to constitute a “company executive.” As set forth in 1904.32(b)(4), company executives include only the following individuals:
- An owner of the company (only if the company is a sole proprietorship or partnership);
- An officer of the corporation;
- The highest ranking company official working at the establishment; or
- The immediate supervisor of the highest ranking company official working at the establishment.
Posting the 300A Annual Summary
After certifying the 300A, OSHA’s Recordkeeping regulations require employers to post the certified copy of the 300A Summary Form in the location at the workplace where employee notices are usually posted. The 300A must remain posted there for three months, through April 30th.
Another common mistake employers make is to not prepare or post a 300A Form in those years during which there were no recordable injuries or illnesses at the establishment. Even when there have been no recordable injuries, OSHA regulations still require employers to complete the 300A form, entering zeroes into each column total, and to post the 300A just the same.
Maintaining the 300A for Five Years
After the certified 300A Annual Summaries have been posted between February 1st and April 30th, employers may take down the 300A Form, but must maintain for five years following the end of the prior calendar year at the facility covered by the form or at a central location, a copy of:
- The underlying OSHA 300 Log;
- The certified 300A Annual Summary Form; and
- Any corresponding 301 Incident Report forms.
In this technology era, many employers have transitioned to using electronic systems to prepare and store injury and illness recordkeeping forms. As a result, another common mistake employers make is to keep only the electronic version of the 300A, and not the version that was printed, “certified,” typically by a handwritten signature, and posted at the facility. Accordingly, those employers have no effective way to demonstrate to OSHA during an inspection or enforcement action that the 300A had been certified.
Finally, another common mistake employers make is to put away old 300 Logs and never look back, even if new information comes to light about injuries recorded on those logs. However, OSHA’s Recordkeeping regulations require employers during the five year retention period to update OSHA 300 Logs with newly discovered recordable injuries or illnesses, or to correct previously recorded injuries and illnesses to reflect changes that have occurred in the classification or other details. This requirement applies only to the 300 Logs; i.e., technically there is no duty to update 300A Forms or OSHA 301 Incident Reports.
Not to be Confused with Electronic Recordkeeping
As mentioned above, the February 1st deadline is separate and apart from the electronic data submission requirement of OSHA’s new Electronic Recordkeeping Rule. The deadline in 2018 for employers to electronically share data from their 2017 300A forms with OSHA is currently set for July 1, 2018, but the rule itself may change, and so too may that July deadline. OSHA has signaled through status reports in a federal district court proceeding and in its semi-annual regulatory agenda that it is working on a Notice of Proposed Rulemaking to reopen the E-Recordkeeping Rule and change it or rescind it. The most likely changes we predict are limiting the data that will be required to be submitted to only 300A Annual Summary data, rather than the full panoply of recordkeeping data, regardless of the size of the employer, and perhaps some other changes to limit the set of employers covered by the rule. Here are a few articles we have written about OSHA’s E-Recordkeeping Rule.
Accordingly, although the web portal is now accepting 2017 data, we encourage employers to wait until close to the July deadline to submit data, because the rule itself may change and the deadline may be pushed to allow more time for OSHA to change the rule.
On New Year’s Day 2015, the Occupational Safety and Health Administration’s (OSHA) new serious 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:
- Lower the threshold for proactively reporting a catastrophic incident from the hospitalization of three or more employees to the hospitalization of a single employee;
- Add amputations (including partial amputations) and loss of an eye to the types of injuries that employers must proactively report;
- Introduce an internet portal for employers to submit reportable events; and
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