Law Sections

Penalty Increases, Electronic Reporting and Much, Much More

OSHA’s Big Year

By John Gannon, Esq. and Susan Fentin, Esq.

John S. Gannon

John S. Gannon

SUSAN G. FENTIN

Susan G. Fentin

Over the past several months, the U.S. Occupational Safety and Health Administration (OSHA) has announced a number of regulatory changes that may have slipped under your radar during the summer season.

The changes are not favorable to the business community and may call for significant changes to your workplace practices.

Increased penalties

Effective August 1, 2016, OSHA’s maximum fines for safety violations went up a massive 78%.  Serious violations, which previously maxed out at $7,000 per violation, will now increase to maximum of $12,471 per violation.

Similarly, the failure-to-abate penalty will also max out at $12,471 per day, which is up from $7,000. Willful and repeat violations will cap at $124,709 per violation, which is up from $70,000. Given the dramatic increase, employers should consider auditing workplace safety practices to evaluate OSHA citation risk.

Electronic reporting data available to the public

OSHA also announced a final rule back in May 2016 that will require certain employers to electronically submit worker injury and illness data starting in 2017. Notably, OSHA intends to post this information on a website available to the public. This means the information will be instantaneously available to other interested parties, including customers, competitors, attorneys and union organizers.

Contractors reviewing project bids may consider this information as part of the bidding process. The agency explained that it will post the data on its public website so that “prospective employees [can] identify workplaces where their risk of injury is lowest.”

Employers that are not exempt from OSHA’s injury and illness record-keeping rules are already required to keep track of their workers’ injuries and illnesses in what is commonly called an “OSHA log.” However, only certain serious injuries currently require direct reporting to OSHA, such as work-related fatalities, amputations and inpatient hospitalizations.

The new rule will require non-exempt employers to directly report far more injury and illnesses data on an annual basis.

The reporting frequency and content will vary depending on the size and industry of the business. Establishments with 250 or more employees that are currently required to keep OSHA injury and illness records must electronically submit information from all OSHA Forms 300 —including Form 300 (Log of Work-Related Injuries and Illnesses); Form 300A (Summary of Work-Related Injuries and Illnesses); and Form 301 (Injury and Illness Incident Report) — by July 1 each year.  However, in 2017, only information on the Form 300A will need to be submitted.  Establishments with 20-249 employees that are classified in a high-hazard industry with historically high rates of occupational injuries and illnesses only need to electronically submit information from OSHA Form 300A.

Employers can find out whether their industry is classified as high-hazard by visiting this website:  https://www.osha.gov/recordkeeping/NAICScodesforelectronicsubmission.pdf

Reporting of workplace injuries

The electronic reporting rule also includes provisions aimed at improving safety without discouraging employee reporting of injuries.  The “anti-retaliation” language is meant to protect employees from being punished for reporting workplace injuries.

For example, the rule requires employers to inform employees of their right to report work-related injuries and illnesses free from retaliation, which many employers already do in a company handbook. However, the rule also states that several common practices may be deemed retaliatory, including:

• Automatically conducting post-accident drug testing of injured employees;

• Maintaining rules or policies that discipline employees who do not immediately report workplace injuries; and

• Maintaining incentive programs that reward employees for experiencing no recordable workplace injuries or illnesses.

The limitation on post-accident drug testing has caused the most concern within the business community. OSHA explained that post-accident testing is not prohibited outright.  Instead, according to the agency, testing should be limited to situations where drug use is likely to have contributed to the accident.

For example, if the employer has reasonable suspicion to suspect the accident is linked to drug use, testing would be permissible. Factual circumstances surrounding the accident, such as odor or bloodshot eyes, may give rise to reasonable suspicion of drug use. Employers should consider implementing a drug-testing policy into their handbook or policy manual that addresses reasonable suspicion testing.

Although the new rule has no impact on random testing, Massachusetts employers must remember that random drug testing is only permissible in limited circumstances.

The anti-retaliation provisions of the final rule were originally set to take effect in August 2016, but have been delayed until Nov. 1, 2016, so that OSHA can “conduct additional outreach and provide educational materials and guidance for employers.” Even so, employers that engage in any of the practices listed above should consult with employment counsel.

John S. Gannon is an associate at the firm of Skoler, Abbott & Presser, P.C.; (413) 737-4753; [email protected] Attorney Susan G. Fentin has been a partner at Skoler, Abbott & Presser since 2004. Her practice concentrates on labor and employment counseling, advising large and small employers on their responsibilities and obligations under state and federal employment laws, and representing employers before state and federal agencies and in court.  She speaks frequently to employer groups, conducts training on avoiding problems in employment law, and teaches master classes on both the FMLA and ADA; [email protected]; (413) 737-4753.

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