OSHA’s New Site-Specific Targeting Inspection Initiative

By Dan C. Deacon and Eric J. Conn

After years of wondering how OSHA could possibly manage and use data collected under the 2016 E-Recordkeeping Rule, the agency has finally revealed its hand.  Last month, OSHA launched its Site-Specific Targeting 2016 (“SST-16”) inspection plan, which outlines the agency’s strategy to target establishments for inspection based on the 300A data collected by OSHA under its Final Rule to Improve Tracking of Workplace Injuries and Illness (i.e.  the “E-Recordkeeping Rule”).

What is OSHA’s SST-16 Inspection Plan?

The SST-16 Inspection Plan is OSHA’s site-specific targeting inspection plan for non-construction workplaces that have 20 or more employees.  The Plan is based on the calendar year 2016 300A injury and illness summary data that employers submitted to OSHA via OSHA’s Injury Tracking Application (aka, the E-Recordkeeping Portal) in December 2017.

Employers should not be surprised by OSHA’s site-specific targeting plan, as this is not a novel program for OSHA. SST was the grandfather of all OSHA enforcement emphasis programs.  Prior to 2014, SST programs used injury and illness information collected under the former OSHA Data Initiative to target the agency’s inspection resources.

OSHA believes the SST Program is “program helps OSHA achieve its goal of ensuring that employers provide safe and healthful workplaces by directing enforcement resources to those workplaces with the highest rates of injuries and illnesses.

The SST-16 Plan selects individual establishments for inspection based on their CY 2016 300A injury data submitted under the E-Recordkeeping Rule.  OSHA has created a software that will generate a list of targeted establishments for enforcement from this pool of data.  The targeted establishments will be those with Continue reading

Delinquent State OSH Plans, Particularly Cal/OSHA, Catch-up with Fed OSHA’s E-Recordkeeping Rule

By Eric J. Conn and Dan C. Deacon

When fed OSHA promulgated the Final Rule to “Improve Tracking of Workplace Injuries and Illnesses” (aka the E-Recordkeeping 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 State Plans all have their own legislative or rulemaking processes, they cannot simply snap their fingers and instantly adopt a new Rule even if required to do so by fed OSHA.  Also importantly, the State Plans, as well as all employers in the regulated community, were getting mixed signals about the future of the E-Recordkeeping Rule from fed OSHA under the new Trump Administration.

Accordingly, although most of the 20+ State Plans acted promptly to promulgate their own version of the E-Recordkeeping rule, leading up to the first injury data submission deadline last year, several State OSH Plans had not yet adopted their own version of an E-Recordkeeping Rule.  Specifically, as of the end of 2017, these eight State Plans had not yet adopted (and some, like California, had not even started the process to adopt) an E-Recordkeeping Rule:

  • California (Cal/OSHA);
  • Washington (WA DLI, WISHA, or DOSH);
  • Maryland (MOSH);
  • Minnesota (MNOSHA);
  • South Carolina (SC OSHA);
  • Utah (UOSH);
  • Wyoming (WY OSHA); and
  • Vermont (VOSHA).

Given the uncertainty of the fate of the E-Recordkeeping Rule after the transition to the Trump Administration and OSHA’s announcement that it would soon issue a Notice of Proposed Rulemaking to revisit the E-Recordkeeping Rule, each of these State Plans except for Vermont OSHA continued to delay adopting the Rule even as we approached the second data submission deadline of July 2018.  And that is when fed OSHA started to speak up.

OSHA’s April 30, 2018 Press Release

On April 30, 2018, OSHA issued a press release announcing that employers in all State Plan States (not the State Plans themselves) must implement OHSA’s E-Recordkeeping Rule.  In the press release, OSHA states that it had determined that:

Section 18(c)(7) of the Occupational Safety and Health (OSH) Act, and relevant OSHA regulations pertaining to State Plans, require all affected employers to submit injury and illness data in the ITA, “even if the employer is covered by a State Plan that has not completed adoption of their own state rule.”

State Plan State Responses

The remaining seven State Plan States provided conflicting responses to fed OSHA’s directive Continue reading

OSHA Civil Penalties On the Rise Again

By Dan C. Deacon and Eric J. Conn

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 Latest on OSHA’s Electronic Recordkeeping and Anti-Retaliation Rule [Webinar Recording]

On September 12, 2017, Eric J. Conn and Dan C. Deacon of Conn Maciel Carey’s national OSHA Practice presented a webinar regarding the Latest on OSHA’s Electronic Recordkeeping and Anti-Retaliation Rule.

OSHA’s controversial Electronic Injury and Illness Recordkeeping data submission rule, along with new Anti-Retaliation elements, has thus far survived a barrage of negative stakeholder comments during the rulemaking, multiple enforcement deferrals and delays of effective dates, and legal challenges complete with preliminary injunction motions.  As of today, all elements of the rule are still in effect, including limits on post-injury drug testing and safety incentive programs, and barring a change before December 1, 2017, hundreds of thousands of workplaces will, for the first time, submit injury and illness recordkeeping data to OSHA, possibly for publishing online.

During this webinar, participants learned:

Continue reading

OSHA’s old “Standards Improvement Project” and Trump’s new Efforts to Slash Regulations [Webinar Recording]

On March 28, 2017, Eric J. Conn and Dan C. Deacon of Conn Maciel Carey’s national OSHA Practice Group presented a webinar regarding OSHA’s old “Standards Improvement Project” and Pres. Trump’s new Executive Orders to Slash Regulations.

OSHA initiated a “Standards Improvement Project” (SIP) under the Clinton Admin. to make non-controversial changes to confusing, outdated or duplicative OSHA standards.  There have been a series of SIP rulemakings since, culminating in SIP Phase IV, published by Obama’s OSHA late in 2016, which proposes numerous revisions to existing standards, including a change to OSHA’s Lockout/Tagout (LOTO) standard that is hardly non-controversial.  Specifically, OSHA is attempting to use SIP to undo a judicial interpretation of “unexpected energization” that OSHA does not support; reading “unexpected” right out of the standard.

What Trump’s OSHA does with the LOTO proposal specifically is a mystery, but what is more important is Trump’s recent actions to address the “regulatory state,” which appear to put SIP on steroids.  Trump has long stated that over-regulation is hampering America’s economic growth, and plans for decreasing regulations have been a high priority in his 100-day action plan.  Trump and Congressional Republicans have made heavy use of the obscure “Congressional Review Act” to permanently repeal numerous Obama-era regulations.  The President has also signed a “2-for-1” Executive Order that requires federal agencies to cut two existing regulations for every new regulation they implement, and another Executive Order directing federal agencies to create “regulatory reform” Task Forces to evaluate federal rules and recommend whether to keep, repeal or change them.  Trump intends for these task forces to reduce what it deems expensive or unnecessary rules.  OSHA rules may be on the chopping block.

Participants in this webinar learned about:

  • The origins and intent of the Standards Improvement Project
  • A controversial proposal to remove “unexpected energization” from OSHA’s LOTO Standard
  • Use of the Congressional Review Act to repeal numerous Obama-era regulations
  • Pres. Trump’s executive orders designed to slash regulations
  • Other steps by the Trump Admin. to “Dismantle the Regulatory State”

Here is a link to a recording of the webinarContinue reading