As of January 15, 2021, civil penalties for workplace safety and health violations issued by federal OSHA will increase by about 1.2%. This increase reflects the annual inflation adjustment to civil monetary penalties initiated back in 2016. As in prior years, though the increase seems minimal, the impact of these annual increases in the aggregate is significant, as OSHA’s civil penalty authority has nearly doubled from what it was just 5 years ago.
How the Annual Penalty Adjustments Started
Over the past several years, we have seen civil monetary penalty increases of about 1%-2% each year, but this all started with a huge spike in permissible penalty amounts through a statute covertly passed during the Obama Administration. Specifically, in an effort to avert a government shutdown, outgoing Speaker of the House John Boehner and President Barack Obama made a backroom deal that ultimately took the form of the Bipartisan Budget Act of 2015. That measure included the “Federal Civil Penalties Inflation Adjustment Improvements Act” – a significant and controversial statute that was essentially unknown (including by the folks within OSHA) and saw exactly zero seconds of debate on the floor.
The Act mandated that essentially all 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. As OSHA’s civil penalty authority had been stagnant for 25 years, the “catch-up” penalty increase was the most significant at OSHA. Per the formula included in the statute, OSHA was required to increase its penalties on August 1, 2016 by nearly 80%.
In addition to the one-time 80% “catch up” increase that went into effect on August 1, 2016, the Federal Civil Penalties Inflation Adjustment Improvements Act required that agencies make automatic annual updates thereafter (by January 15th each year) to civil penalties based on inflation. OSHA made its Continue reading →
This is your yearly reminder about the important 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 codes are in the set of low-hazard industries exempt 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). 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.
Note that February 1st falls on a Saturday this year, but that does not affect the deadline to post. So, if there will be noone present at your workplace to make the posting on that Saturday, be sure to get your 300A posted by Friday, January 31st.
This February 1st requirement to prepare, certify and post 300A forms should not be confused with OSHA’s Electronic Recordkeeping Rule. The February 1st deadline is only about the internal hard copy posting of 300A data for your employees’ eyes. The E-Recordkeeping Rule, on the other hand, requires certain employers to electronically submit data from their 300A Annual Summary forms to OSHA through OSHA’s web portal – the Injury Tracking Application. The deadline for those submissions this year (i.e., to submit 300A data from 2019) is March 2, 2020. Click here for more information about OSHA’s E-Recordkeeping Rule.
By February 1st every year, covered employers must:
Review their OSHA 300 Log(s);
Verify the entries on the 300 Logs are complete and accurate;
Correct any deficiencies identified on the 300 Logs;
Use the injury data from the 300 Log to calculate an annual summary of injuries and illnesses, and input those calculations into the 300A Annual Summary Form; and
Have a “Company Executive” certify the accuracy of the 300 Log and the 300A Summary Form.
Five Common 300A Mistakes that Employers Make
We frequently see employers make the following five mistakes related to this annual duty to prepare, post and certify the injury and illness recordkeeping summary: Continue reading →
When OSHA receives a complaint related to worker safety and health or a severe injury report, one action by OSHA is to give the employer an opportunity to respond before it takes the more extreme action of opening an inspection. In addition, when OSHA receives an allegation of retaliation, it must provide the employer a chance to explain why the adverse employment action of which it is accused was legitimate or did not occur as alleged. These responses are an opportunity for the employer to avoid an inspection or litigation of a retaliation claim. A strong response could assuage OSHA’s concerns and resolve the complaint in a favorable manner for the employer. However, these responses can also create a written record of admissions to which OSHA can hold the employer accountable, and any supporting documentation may be closely scrutinized and used to create liability.
Thus, employers must ensure there is a procedure in place for managing and developing the responses to these situations, and be strategic about the information they share with OSHA in the response. We are pleased to share the following tips and strategies for how to effectively address such complaints.
To start, although OSHA enforces whistleblower standards under 22 different statutes, the agency receives most of its retaliation claims (over 62%) under Section 11(c) of the Occupational Safety and Health (OSH) Act. Section 11(c) prohibits employers from retaliating against workers who in good faith attempt to exercise a worker safety-related protected right under the law.
While the vast majority – about 71% – are either dismissed by OSHA or withdrawn by the employee, the sheer number of complaints OSHA receives, and the fact that nearly 30% of them do end in favor of the employee, should be more than motivation for employers to thoroughly address each one filed against them. This is particularly true because, under Section 11(c), employees can be entitled to substantial remedies, such as Continue reading →
OSHA’s controversial E-Recordkeeping Rule has been challenged and criticized by stakeholders since its inception, and finally, in January 2019, the Trump Administration unveiled its Final Amended Rule. However, the Amended Rule did not go nearly as far as many expected or hoped. Indeed, the Amended Rule eliminated only the requirement for large establishments to submit 300/301 data, but did nothing to alleviate the data submission burden on smaller employers, and did not address the controversial anti-retaliation provisions (e.g., limits to post-injury drug testing and safety incentive programs) at all.
Not to be confused with E-Recordkeeping, OSHA’s Significant Injury and Fatality Reporting Rule has created significant new interactions between employers and OSHA since its update in 2015. Many employers still wrestle with the nuances of when and how to report significant injuries involving hospitalizations, amputations, and fatalities to OSHA. In particular, employers are struggling to determine what constitutes a reportable hospitalization and amputation.
OSHA guidance states that “if an employee can perform their job functions in a manner which does not pose a safety hazard to themselves or others, the fact they have a disability is irrelevant.” But under the Americans with Disabilities Act, it can be difficult to determine when and how to accommodate a disability while also protecting safety of disabled employees and their co-workers. This assessment is further complicated when employers are unaware a disability may cause or contribute to a workplace hazard. It is important to understand the law in this context, especially due to America’s aging workforce.
The ADA also requires medical information related to a disability be kept confidential, yet OSHA mandates certain information be provided on OSHA injuries and illness recordkeeping Logs. A disability may also impact whether and how an injury is recorded. Likewise, both the ADA and OSHA rules impact employee drug testing and handling drug test information. Therefore, it is critical for employers to understand the intersection between the ADA and OSHA.
In former President Obama’s second term, his Administration rolled-out a major change to OSHA’s Fatality & Significant Injury Reporting Rule. Not to be confused with the new Electronic Recordkeeping Rule (which requires certain employers to submit injury and illness data to OSHA on annual basis), this amended rule required all employers to make prompt phone calls to OSHA when work related fatalities or covered in-patient hospitalizations and amputations occur.
The rule has resulted in thousands more reports of incidents to OSHA than before. Now, three years into the new reporting scheme, we have learned a lot of lessons about what is being reported to OSHA, what non-mandatory reports are often made, and what OSHA is doing with all the new reported incidents.
On February 1, 2017, President Trump nominated Neil Gorsuch, a judge on the U.S. Court of Appeals for the Tenth Circuit in Denver, Colorado, to fill the vacancy on the Supreme Court left by Antonin Scalia’s death in February 2016. Indeed, since February 2016, the High Court has functioned with only eight members; four liberal Justices and four conservative Justices. Therefore, the confirmation of a ninth Justice to fill the vacant position, and establish a majority conservative bench, is likely to have a substantial impact on the outcome of controversial issues brought before the Court.
Gorsuch was appointed to the Tenth Circuit by President George W. Bush in 2006. Although he is considered a firm conservative, as was expected given President Trump’s public stance to fill the vacancy with a judge who embodies Scalia’s principles, he has garnered praise from both liberals and conservatives for his work as an appellate judge due to his reputation for conveying his ideas fluently and courteously.
A number of Democrats have already conveyed their opposition to Gorsuch’s nomination, which could prove problematic as he will need to win over some Democratic senators to get the 60 votes needed to clear procedural hurdles.However, setting the political climate aside, when Judge Gorsuch was appointed to the Tenth Circuit in 2006, he was confirmed by the Senatewithout objection. Only time will tell if Judge Gorsuch will acquire enough support from Senate Democrats to overcome a filibuster given the immediate public opposition from Democrats following Gorsuch’s nomination, and whether he will be approved in time to hear oral arguments later this spring. Judge Gorsuch’s opinions on labor and employment topics suggest that he favors businesses, and his decisions reflect a distaste for overreaching agency action which could result in some limiting decisions if he is ultimately confirmed.
Who is Judge Gorsuch?
Prior to being appointed to the Tenth Circuit, Judge Gorsuch amassed an impressive resume. He received his undergraduate degree from Columbia University in New York City in 1988 and his law degree from Harvard Law School, with honors, in 1991 where he was the editor of the Harvard Journal of Law & Public Policy and classmates with former President Obama. Judge Gorsuch also earned a doctorate of legal philosophy from Oxford University in 2004, where he studied as a Marshall Scholar. Judge Gorsuch began his law career as a
OSHA compliance issues have been long ignored in the due diligence process for mergers, acquisitions and divestitures. With OSHA’s focus on follow-up inspections and Repeat citations, and expanding the concept of successor OSHA liability, it is a topic that should no longer be left out of the due diligence process. This webinar delved into the current landscape of successor liability under the OSH Act, explained what safety and health obligations a new employer may assume as a result of past conduct by a predecessor employer, and provided tips and strategies for managing OSHA compliance related due diligence.
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 →