In May 2016, OSHA issued it Final Rule for injury and illness recordkeeping, which required nearly all employers to electronically submit to OSHA injury and illness information from OSHA Forms 300, 300A, and 301. Specifically it would have mandated: All ...

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Ohio OSHA Law Blog"Ohio OSHA Law Blog" - 5 new articles

  1. OSHA eliminates its electronic reporting requirements
  2. Here come the drones! OSHA is now using drones to investigate outdoor workplaces
  3. OSHA softens its hard line against workplace safety incentive programs and post-incident drug testing
  4. President Trump un-does Obama-era OSHA reporting rule
  5. Federal court denies injunction against new OSHA retaliation rules
  6. More Recent Articles

OSHA eliminates its electronic reporting requirements

In May 2016, OSHA issued it Final Rule for injury and illness recordkeeping, which required nearly all employers to electronically submit to OSHA injury and illness information from OSHA Forms 300, 300A, and 301.

Specifically it would have mandated:

  1. All establishments with 250 or more employees in industries covered by the recordkeeping regulation to submit to OSHA annually their injury and illness data and information from their OSHA 300 Logs, 301 Incident Reports, and 300A Annual Summaries;
  2. Establishments with 20-249 employees in select “high hazard industries” to annually submit information from their 300A Annual Summaries only;
  3. All submissions to be done electronically, via OSHA’s secure website portal; and
  4. Employers’ injury data would be publicized in a public database.

It took effect on Aug. 10, 2016. However, its implementation was plagued with delays and court challenges.

Now, thanks to the Trump Administration, it is largely moot. On Jan. 25, 2019, OSHA published its Final Rule modifying its electronic reporting requirements. Effective Feb. 25, 2019, employers with 250 or more employees will no longer be required annually to electronically submit to OSHA information from Form 300 (Log of Work-Related Injuries and Illnesses) and Form 301 (Injury and Illness Incident Report). The final rule does not eliminate the requirement of these employers to electronically submit information from OSHA Form 300A (Summary of Work-Related Injuries and Illnesses). Further, all OSHA-covered employers are still required to maintain OSHA Forms 300 and 301 on-site, and OSHA will continue to obtain these forms as needed through inspections and enforcement actions.

According to OSHA, these changes “will allow OSHA to improve enforcement targeting and compliance assistance, decrease burden on employers, and protect worker privacy and safety.”

Bravo, OSHA!

If you have any questions about your company’s recordkeeping obligations under OSHA, please contact one of our Occupational Safety & Health attorneys.

The post OSHA eliminates its electronic reporting requirements appeared first on Ohio OSHA Law Blog.

        

Here come the drones! OSHA is now using drones to investigate outdoor workplaces

According to a May 18, 2018, Department of Labor Memorandum (obtained by Bloomberg Law via a Freedom of Information Act Request), OSHA has been authorized to begin using “camera-carrying drones as part of their inspections of outdoor workplaces.” Use is intended to be limited to areas that are otherwise difficult and dangerous for OSHA inspectors to access.

Current protocols require employer consent prior to OSHA’s use of a drone. Yet, do you want to be the employer who says no? As pointed out by Tammy McCutchen (writing for The Federalist Society, c/o Walter Olson’s Overlawyered), denying an OSHA investigatory request is the quickest way to become an OSHA target as an uncooperative (and presumptively unsafe) employer:

Employers who refuse such consent – who exercise their Fourth Amendment right and require DOL to obtain a search warrant – risk the ire of the DOL, with serious consequences. Nothing is more likely to put a target on an employer’s back for multiple and frequent future investigations than sending a DOL investigator away from your doors. Refusing consent will label you at the DOL as a bad faith employer that deserves closer scrutiny.

Which is not to suggest that these robotic investigations are not without risk. Anything in plain sight is fair game in an OSHA investigation. Once you give OSHA permission to fly its drone, any violations it spies will be cited.

Moreover, the memo contains several key omissions. It offers no protections for an employer’s trade secrets, or other proprietary or confidential information. It says nothing about employees’ privacy. It does not detail how videos will be stored, for how long, and who will have access. It does not exempt the videos from a FOIA request made by a competitor or labor union.

In all but the most extreme of circumstances, I always advise employers to cooperate with DOL investigators, provide requested documents, and allow on-site investigations. Yet, when OSHA comes knocking and requests that it fly a drone as part of its investigation, you will need to call your employment counsel, collectively weigh the pluses of avoiding OSHA’s ire (and a search warrant) versus the minuses of OSHA’s lack of protections, and decide whether to permit the remote recording.

 

* Photo by Jared Brashier on Unsplash

The post Here come the drones! OSHA is now using drones to investigate outdoor workplaces appeared first on Ohio OSHA Law Blog.

        

OSHA softens its hard line against workplace safety incentive programs and post-incident drug testing

It’s been two years since OSHA announced its hard-line interpretation of its then newly announced anti-retaliation rules—that using incentive programs to penalize workers for reporting work-related injuries or illnesses, and that conducting post-incident drug testing without a reasonable possibility that employee drug use could have contributed to the reported injury or illness, constitutes unlawful retaliation under OSHA.

Last week, OSHA published a memo, which specifically clarifies that it “does not prohibit workplace safety incentive programs or post-incident drug testing.” [emphasis in original]

What does this mean?

Incentive Programs

One example of an incentive programs is one that rewards workers for reporting near-misses or safety hazards. According to OSHA, “Positive action taken under this type of program is always permissible.”

Another example rewards employees with a prize or bonus at the end of an injury-free month, or evaluates (and bonuses) managers based on their work unit’s lack of injuries. According to OSHA, these programs are also permissible, “as long as they are not implemented in a manner that discourages reporting.”

According to OSHA:

If an employer takes a negative action against an employee under a rate-based incentive program, such as withholding a prize or bonus because of a reported injury, OSHA would not cite the employer [for retaliation] as long as the employer has implemented adequate precautions to ensure that employees feel free to report an injury or illness.

What are “adequate precautions to ensure that employees feel free to report an injury or illness?”

  • An incentive program that rewards employees for identifying unsafe conditions in the workplace;
  • A training program for all employees to reinforce reporting rights and responsibilities and emphasizes the employer’s non-retaliation policy;
  • A mechanism for accurately evaluating employees’ willingness to report injuries and illnesses.

Post-Accident Drug Testing 

According to OSHA, “most instances of workplace drug testing are permissible.” Examples of permissible drug testing include:

  • Random drug testing.
  • Drug testing unrelated to the reporting of a work-related injury or illness.
  • Drug testing under a state workers’ compensation law.
  • Drug testing under other federal law, such as a U.S. Department of Transportation rule.
  • Drug testing to evaluate the root cause of a workplace incident that harmed or could have harmed employees. If the employer chooses to use drug testing to investigate the incident, the employer should test all employees whose conduct could have contributed to the incident, not just employees who reported injuries.

Employers no longer need a nexus between the possible or suspected drug use and the reported injury or illness.

If you have questions about implementing or modifying a workplace safety incentive program, or a post-accident drug testing program, contact Meyers Roman’s Occupational Safety & Health team.

The post OSHA softens its hard line against workplace safety incentive programs and post-incident drug testing appeared first on Ohio OSHA Law Blog.

        

President Trump un-does Obama-era OSHA reporting rule

Earlier this week, President Trump signed a Congressional resolution that revokes a key Obama-era OSHA rule. That rule, known as the Volks rule, extended OSHA’s authority to issue citations for record-keeping violations from six months to an astounding five years. While OSHA still requires employers to keep injury and illness logs for five years, OSHA will only issue record-keeping citations six months following a violation. For employers, this rule is change is significant. Gone is the risk of a costly OSHA citation for any record-keeping violation older than six months. Also significantly, this resolution does not impact OSHA’s electronic record-keeping rule and its anti-retaliation provisions, also enacted under President Obama’s watch. Stay tuned, however, as President Trump has promised that his federal agencies will focus on compliance and education, not enforcement. Accordingly, OSHA’s record-keeping and retaliation rules are far from safe.

The post President Trump un-does Obama-era OSHA reporting rule appeared first on Ohio OSHA Law Blog.

        

Federal court denies injunction against new OSHA retaliation rules

Last week, a federal judge in Texas denied issuing an injunction against OSHA’s new reporting rules [pdf] (for background on these rules, click here, here, and here), which took effect on December 1.

What does this mean for your business. You now must comply with all 273 pages of the OSHA’s new injury reporting rule, including the requirements that establishments with 250 or more employees in industries covered by OSHA’s recordkeeping regulation must electronically submit to OSHA injury and illness information on OSHA Forms 300, 300A, and 301, and establishments with 20-249 employees in certain industries electronically submit information on OSHA Form 300A only. It also limits post-accident and -injury discipline and drug testing, and further limits employers’ accident-free incentive programs. These changes are significant, and will impact how you do business.

If you have questions or concerns about how these new rules impact your business, we recommend that you contact your friendly neighborhood OSHA-familiar labor and employment lawyer for help.

The post Federal court denies injunction against new OSHA retaliation rules appeared first on Ohio OSHA Law Blog.

        

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