The state of California’s Division of Occupational Safety and Health, better known as Cal/OSHA, is perhaps the most aggressive and enforcement-heavy approved state OSH Program in the nation. California employers face a host of requirements that other employers around the country do not. Likewise, the Cal/OSHA inspection and appeal process creates several unique landmines for California employers.
Of particular significance, in the coming year, California employers can expect an uptick in Cal/OSHA penalties as result of two significant changes, one adopting higher maximum civil penalty authority, and the other changing how the agency finds and cites violations characterized as Repeat.
A fascinating jurisdictional tug-of-war has broken out between federal OSHA and a few fed OSHA approved State OSH Programs, in relation to OSHA’s Final Rule to “Improve Tracking of Workplace Injuries and Illnesses” (aka the E-Recordkeeping Rule). The E-Recordkeeping Rule requires large employers and smaller employees that operate in certain “high hazard industries” to proactively submit their electronic injury and illness data to OSHA through a special web portal – the Injury Tracking Application (“ITA”).
State Plan Adoption of OSHA’s E-Recordkeeping Rule
When fed OSHA promulgated the Rule in 2016, it built into the Rule a mandate that all State Plans adopt substantially identical requirements to the final E-Recordkeeping Rule within six months after its publication. However, because the State Plan states all have their own legislative or rulemaking processes, they cannot simply snap their fingers and instantly adopt a new fed OSHA rule.
Most of the 20+ State Plans acted promptly to promulgate their own version of the E-Recordkeeping rule, ahead of the deadline to submit data the first year of the Rule, but as of the end of 2017, when employers’ 2016 300A data was due to be submitted, eight State Plans had not yet adopted (and some, like California, had not even started the process to adopt) an E-Recordkeeping Rule. Those states included:
Washington (WA DLI, WISHA, or DOSH);
South Carolina (SC OSHA);
Wyoming (WY OSHA); and
The delay by these States has primarily been a result of fed OSHA’s numerous announcements that it will soon issue a Notice of Proposed Rulemaking to amend (or rescind) the federal E-Recordkeeping Rule. The State Plans have been reluctant to invest the time and resources to implement their own versions of the rule, only to watch fed OSHA change it, causing the states to have to change their own rules again very soon.
Of those eight states, only Vermont has since finalized its E-Recordkeeping Rule this year, and the other seven remain delinquent in their obligation to adopt the Rule.
Last year, fed OSHA and those eight state plans apparently recognized that only employers in fed OSHA states or State Plan states that had already adopted the E-Recordkeeping rule were required to submit their 300A data to OSHA. This year, however, fed OSHA spoke up about the delinquent states. Continue reading →
Musculoskeletal disorders (MSDs) are the single most common type of work-related injury, but federal OSHA has struggled for decades to develop a coherent regulatory and/or enforcement strategy to address the hazards that cause these ergonomic injuries. Where federal OSHA fell short, the State of California has picked up the slack, with Cal-OSHA recently finalizing a safety standard regarding Housekeeping Musculoskeletal Injury Prevention. The standard, which will go into effect this summer applies to all lodging establishments that offer sleeping accommodations available to be rented by members of the public, and requires operators to develop, implement and maintain a written Musculoskeletal Injury Prevention Program tailored to hazards associated with housekeeping.
Background About Ergonomics
An ergonomic hazard is a physical factor within the work environment that has the potential to cause a musculoskeletal disorder (MSD). MSDs are injuries and disorders that affect the human body’s movement or musculoskeletal system; i.e., muscles, tendons, ligaments, nerves, discs, blood vessels, etc. Common ergonomic hazards include repetitive movement, manual handling, workplace design, uncomfortable workstation height, and awkward body positioning. The most frequent ergonomic injuries (or musculoskeletal disorders) include muscle/tendon strains, sprains, and back pains, Carpal Tunnel Syndrome, Tendonitis, Degenerative Disc Disease, Ruptured / Herniated Disc, etc., caused by performing the same motion over and over again (such as vacuuming), overexertion of physical force (lifting heavy objects), or working while in an awkward position (twisting your body to reach up or down to perform a work task).
MSDs are the single most common type of work related injury. According to Bureau of Labor Statistics data, MSDs alone account for nearly 30% of all worker’s compensation costs. OSHA estimates that work-related MSDs in the U.S. alone account for over 600,000 injuries and illnesses (approx. 34% of all lost workdays reported to the BLS), and employers spend as much as $20 billion a year on direct costs for MSD-related injuries and up 5x that on indirect costs (e.g., lost productivity, hiring and training replacement workers, etc.).
Federal OSHA’s Ergonomics Enforcement Policy
Nevertheless, federal OSHA has been lost in the woods for years searching for a coherent ergonomics enforcement policy. In the final days of the Clinton Administration in November 2000, federal OSHA promulgated an extremely controversial midnight Ergonomics Standard, requiring employers to take measures to curb ergonomic injuries in the workplace. Continue reading →
As of January 2, 2018, civil penalties for workplace safety and health violations issued by federal OSHA increased again by 2% across the board. Although a 2% increase does not shock the system, this increase is part of a program that has resulted in OSHA’s civil penalty authority nearly doubling since 2016.
History of Civil Penalty Adjustments
As I sit here this afternoon wondering if the government will shut down over disputes about immigration and healthcare, I am reminded of a time just a couple of years ago, in late 2015, when we were again on the verge of a government shutdown over abortion rights and deficit spending. That shutdown was averted thanks to a backroom deal between outgoing Speaker of the House John Boehner and President Obama, which ultimately took the form of the Bipartisan Budget Act of 2015. That “kick the can down the road” measure included a controversial statute that was essentially unknown (including by the folks within OSHA) and saw exactly zero seconds of debate on the floor. It was called the “Federal Civil Penalties Inflation Adjustment Improvements Act,” and it mandated that executive agencies increase their maximum civil penalty authority by the percent increase to the Consumer Price Index since the last time the agencies had raised their penalties.
On June 30, 2016, the Department of Labor issued its Interim Final Rule to implement the Civil Penalty Inflation directive. OSHA’s civil penalty authority had been stagnant for as long as any other agency, not having been increased for 25 years (since 1990), so this “catch-up” penalty increase for OSHA was the most significant. Indeed, following the formula included in the statute, OSHA was required to increase its penalties on August 1, 2016 by the same percentage increase as the growth from the 1990 Consumer Price Index – Urban (CPI-U) to the October 2015 CPI-U, which was nearly 80%:
In addition to the one-time 80% “catch up” increase that went into effect on August 1, 2016, OSHA’s Interim Final Rule, the Federal Civil Penalties Inflation Adjustment Improvements Act also required Continue reading →
The Trump Administration has taken the reins at OSHA, and the first year of the new OSHA’s enforcement and regulatory (or de-regulatory) agenda is in the books. We have already seen significant changes in the way OSHA does business and the tools available to the Agency in its toolkit. Now, as the new Administration finishes filling out the OSHA leadership team with its own appointees, we are sure to see shifting of enforcement priorities, budgets and policies, and an amplified effort to repeal or re-interpret controversial Obama-era OSHA rules and policies. Accordingly, it is critical to stay abreast of OSHA developments.
OSHA’s Final Rule to “Improve Tracking of Workplace Injuries and Illnesses” (aka the E-Recordkeeping Rule) requires employers of certain sizes that fall into certain categories to proactively submit electronic injury and illnesses data to OSHA through its new web portal – the “Injury Tracking Application.” The new rule dramatically changes the responsibilities and impacts of OSHA’s long-standing injury and illness recordkeeping program.
Historically, unless OSHA opened an enforcement inspection at an employer’s workplace or the Bureau of Labor Statistics requested an employer to participate in its annual injury data survey, employers’ OSHA 300 Logs and related forms remained strictly in-house. Employers kept the data and their OSHA logs in their HR or Safety Department office, posted them internally for employees to view for a couple of months, used the data themselves to make decisions about how to reduce risk of injury and illness in their workplaces, and then stored the records in a cabinet or desk drawer for five years. Now, OSHA’s new rule requires hundreds of thousands of employers to proactively submit these historically private records to OSHA, which in turn may publish the data online for all the world to see.
All establishments with 250 or more employees (in industries not exempt from keeping injury logs) must submit to OSHA annually their injury and illness data from their OSHA 300 Logs, 301 Incident Reports, and 300A Annual Summaries.
All of the submissions to OSHA must be made electronically, via a purportedly secure website.
OSHA stated its original intent was to publish the data online, likely in a manner that is sortable, searchable, filterable, and as embarrassing to employers as possible.
Note however, in this first year of the rule, for the upcoming data submission of 2016 injury data to be made in calendar year 2017, all employers, irrespective of size, are only required to submit 300A Annual Summary data.
Deadline to Submit Data – A Moving Target
The deadline to submit data has been a topic of discussion, and there remains some uncertainty whether employers will be required to electronically submit injury and illness data. Continue reading →
On April 11th, Andrew J. Sommer and Eric J. Conn of Conn Maciel Carey’s national OSHA Practice Group presented a webinar regarding “New Cal/OSHA Issues that California Employers Must Understand.”
The state of California’s Division of Occupational Safety and Health (DOSH), better known as Cal/OSHA, is perhaps the most aggressive and enforcement-heavy approved state OSH Program in the nation. California employers face a host of requirements that other employers around the country do not. Likewise, the Cal/OSHA inspection and appeal process creates several unique landmines for California employers.
In light of new Cal/OSHA standards taking effect in 2017 and others on the horizon, this is the perfect time for companies doing business in the Golden State to revamp their safety programs and take necessary steps to ensure compliance with the latest Cal/OSHA safety regulations.
Participants in this complimentary webinar learned about the following:
Cal/OSHA’s New Repeat Violation Rule
Cal/OSHA’s New Workplace Violence Rule for Health Care Facilities
New Law Mandating the Development of Heat Illness Prevention Regulations for Indoor Workplaces
Effective April 1, 2017, a new California Occupational Safety and Health Standards Board (“Standards Board”) regulation at Title 8, Section 3342 requires certain employers in the health care industry to develop and implement a Workplace Violence Prevention Plan. The passage of these regulations came after nearly two years of meeting and work within the Agency, and more than two years after the California legislature passed Senate Bill 1299, which instructed the Standards Board to implement these workplace violence regulations.
Rules Apply to Health Care Facilities
Senate Bill 1299 only directed the Standards Board to adopt regulations requiring licensed hospitals to adopt violence prevention plans to protect health care workers and other facility personnel from aggressive and violent behavior. The regulations that were adopted by the Standards Board, however, apply not just to licensed hospitals, but more broadly to any “health facility,” defined as:
“any facility, place or building that is organized, maintained, and operated for diagnosis, care, prevention or treatment of human illness, physical or mental…to which  persons are admitted for a 24-hour stay or longer.”
Additionally, the regulations apply to the following facilities regardless of their size or how long a patient stays there:
Home health care and home-based hospice;
Emergency medical services and medical transport, including services provided by firefighters and other emergency responders;
Drug treatment programs;
Outpatient medical services to the incarcerated in correctional and detention settings.
Immediate Requirement to Begin Reporting Violent Incidents
Beginning April 1, 2017, every general acute care hospital, acute psychiatric hospital and special hospital generally must report to the Division of Occupational Safety and Health (DOSH) any incident involving Continue reading →
As the Obama Administration turns out the lights and hands over the keys to the Trump team, OSHA’s enforcement and regulatory landscape is sure to change in significant ways, from shifting enforcement priorities, budgets and policies, to efforts to repeal or re-interpret controversial Obama Era regulations. As a Washington outsider, what OSHA will look like under Pres. Trump is a greater mystery than perhaps under any other incoming President in OSHA’s history. Accordingly, it is more important now than ever before to pay attention to OSHA developments.
To register for an individual webinar, click on the link below the program description. To register for the entire 2017 series, click here to send us an email request, and we will register you. If you missed any of our programs from the 2015 or 2016 OSHA Webinar Series, here is a link to an archive of recordings of those webinars.
With the harvest upon us in California wine country, now is a great time to remind wineries and vineyards operating within the Golden Gate of those Cal/OSHA standards most often cited against this industry. The California Division of Occupational Safety and Health (Cal/OSHA), which is charged with enforcing the state’s workplace safety standards, frequently cites wine industry businesses for failing to comply with several California-unique standards, such as the heat illness prevention rule and chemical right-to-know hazard communication requirements, as well as failing to comply with confined space and respiratory protection standards. We highlight these key Cal/OSHA standards and their impact on the wine industry.
Vineyards Vexed by Heat Illness Prevention Standard
California has adopted a Heat Illness Prevention Standard (§3395), which initially in 2005 was an emergency regulation. DOSH considers enforcement of the heat illness prevention standard to be a “special emphasis” and, as such, during every compliance inspection involving work sites that may be subject to this requirement, Cal/OSHA inspectors are expected to inquire about and evaluate employers’ Heat Illness Prevention Plan. This is an area of particular scrutiny in the wine industry, where vineyard employees frequently work outdoors, often in high heat conditions. Continue reading →
The state of California’s Division of Occupational Safety and Health (DOSH), better known as Cal/OSHA, is perhaps the most aggressive and enforcement heavy approved state OSH program in the country. Cal/OSHA faces many fewer bureaucratic and political obstacles than fed OSHA in developing new rules (really legislation). Accordingly, California employers face a host of requirements that employers around the country do not. Likewise, the Cal/OSHA inspection and appeal process creates several unique landmines for California employers.
In advance of the webinar, the employment attorneys at Conn Maciel Carey and the Ergonomics Experts at JFAssociates co-authored a detailed article about the California Supreme Court’s new, significant opinion that changed the landscape of California’s suitable seating in the workplace requirements. Specifically, the new ruling places the question of whether the “nature of the work reasonably permits the use of seats” squarely at the center of a new cottage industry of class and collective action lawsuits in California.
This joint webinar by Conn Maciel Carey’s Employment Law Practice and the leading ergonomics experts at JFAssociates reviewed:
The California legislation that mandates suitable seating;
The First wave of law suits invoking the suitable seating requirements;
The California Supreme Court’s recent decision and what it means for the future of suitable seating cases; and
Practical and expert witness strategies to avoid and defend against suitable seating law suits.
A recent California Supreme Court ruling provides crucial new guidance on how courts should weigh the evidence in so-called “suitable seating” cases, which employee litigants are bringing under the state requirement that employers provide seats to workers where the nature of their work “reasonably permits” the use of seating.
This is a key emerging issue for the Golden State’s business community, with a new cottage industry of lawsuits stemming from a state appellate court decision several years ago allowing “suitable seating” litigation under the California Private Attorney General Act (PAGA). The ruling encouraged new lawsuits because penalties as well as attorney’s fees and costs may be awarded under PAGA.
The California Supreme Court handed down an opinion April 4, 2016 in response to questions posed by two federal lawsuits, setting out new ground rules for what actually constitutes “suitable seating” under the law. Employers with locations in California are well-advised to evaluate their work environments in light of these latest developments and consider the need for workplace safety experts to assess their individual circumstances. Not only can such evaluations, based on the new Supreme Court guidance, help employers head off litigation (or at least reach a favorable outcome if sued), they also can lower other risk factors and costs like worker’s compensation.
The Court adopted a fact-based approach that depends not on the entire job, but on Continue reading →
OSHA has broad authority to conduct workplace enforcement inspections, and such enforcement efforts have reached record levels under the Obama Administration. OSHA gathers virtually all of the evidence it needs to substantiate a citation during inspections. Accordingly, it is essential that employers know and assert their rights during OSHA inspections. Below are three specific, important rights that Employers have during OSHA inspections.
1. Insist on an Opening Conference
The Opening Conference is the most important stage of an OSHA inspection. Employers have the right to an opening conference, and should always require that OSHA provide one before officially beginning an onsite inspection. First, an Opening Conference is the employer’s last chance to avoid an inspection altogether. During the Opening Conference, OSHA must explain why your workplace is being inspected, and if there are holes in that explanation (e.g., incorrect application of an emphasis program, non-credible employee complaint, or a programmed inspection too soon after a prior inspection), you could convince OSHA that the inspection should not proceed. If the inspection will proceed, the Opening Conference is the time for employers to negotiate the scope of the inspection. For example, if OSHA is there because of an employee complaint, employers should negotiate with OSHA to limit the inspection to only the subject(s) of the complaint, and not consent to a wall-to-wall inspection. Employers can also establish ground rules for the inspection (e.g., require written document requests, arrange employee interviews in advance, and require a management escort for access to the facility).
Another benefit of asking lots of questions, engaging in meaningful negotiations over the scope of the inspection and explaining your ground rules, in addition to ensuring a smooth inspection, is that a long lasting Opening Conference will allow managers time to conduct a final walkthrough of the facility to address any low hanging fruit and advise the workforce of OSHA’s presence before the inspection starts in earnest.
2. Accompany the CSHO at All Times
As part of an inspection, the CSHO will conduct a walkaround of the workplace. During the walkaround, a management representative should always Continue reading →
For as long as I have been practicing OSHA law (more than 15 years now), four things have remained constant:
The maximum per violation penalty that OSHA has been permitted by the OSH Act to assign to Serious violations has been $7,000, and for Repeat or Willful violations it has remained $70,000;
The Assistant Secretary of Labor for OSHA makes an annual pilgrimage to the Hill where he or she pounds on the table and demands that Congress enact OSHA reform legislation to increase the maximum penalties OSHA can assign (with common refrains like: “employers can be fined more for mistreating cattle on federal lands than for allowing an employee fatality!”);
There has been one iteration or another of such reform legislation (usually dubbed the “Protecting America’s Workers Act”) floating around Congress and stalling before it even gets out of Committee; and
OSHA proposes penalties on average at a level 50% below the maximum penalty level currently authorized.
Yet, here we are in 2015 with a Republican-controlled House and Senate, and through the backdoor comes a Congressionally-mandated increase to maximum OSHA civil penalties of nearly 80%. A bizarre parting gift by now former Speaker of the House John Boehner, no doubt part of his effort to “clear the barn” for his successor. Color me shocked.
Here are the details. The much publicized two-year bipartisan budget agreement allowed the federal government to remain open and not default on the U.S. debt, but it also contained lesser known (or completely unknown) provisions, including one that allows for a nearly 80% increase in OSHA penalties in the next year, as well as indefinite periodic increases to match the rise of the cost of living in the future.
The Civil Penalties Adjustment section of the 2015 budget bill was hammered out between Speaker Boehner and the White House with apparently no input from House or Senate members. It provides for a one-time “Catch-up Adjustment” that must be implemented by no later than August 1, 2016. The catch-up adjustment is tied to the percentage rise in the Consumer Price Index (CPI) from the time OSHA last increased its civil penalties in 1990 through November 17, 2015. The actual percentage increase will not be known until next week, but based on recent CPI trends, the increase is expected to be approximately 80%.
Assuming a penalty inflation adjustment of approximately 80%, OSHA will be imminently increasing the maximum civil penalty for alleged Serious violations from $7,000 per violation to approximately $12,000, and for alleged willful or repeat violations from $70,000 per violation to approximately $120,000. After the initial catch-up increase, OSHA is also authorized by the law to Continue reading →
Today’s OSHA has increased enforcement to levels never seen before, from increased inspections and citations to dramatically higher penalties, from more criminal referrals to a heavy dose of public shaming. It is more important than ever to be prepared. This complimentary webinar series has been designed to give employers the tools they need to avoid becoming an OSHA-enforcement poster child.
We have recorded and will continued to record each of the webinars, and as we move through the year and conduct these webinars, we are pleased to provide links below to the recordings. There are also links below to the registration pages for the remaining webinars in the series. Check out the completed webinars and plan to join us for all or some of the rest of the series.