OSHA’s Electronic Reporting Rules – An Update and What You Can Do Now - PowerPoint Presentation

OSHA’s Electronic Reporting Rules – An Update and What You Can Do Now In Preparation For Compliance With Reporting Obligations, OSHA Review and Inspection ActivityGregory N. DaleFaegre Baker Daniels LLPJuly 27, 2016

OSHA's Electronic Reporting Rule – Tracking Workplace Injuries and IllnessesThe new rule does not change an employers’ existing obligation to collect, maintain and certify injury/illness records. But it does require some employers to electronically submit such records, as detailed in this presentation.The effective date for electronic reporting (for states covered by federal OSHA): January 1, 2017 (phased in as noted below).The effective date of the anti-retaliation changes: initially, August 10, 2016 but stayed by OSHA to November 1, 2016.

OSHA's Electronic Reporting Rule – Tracking Workplace Injuries and Illnesses The effective date for the rule, as adopted by state plans, may be different in each state plan jurisdiction. However, OSHA requires each state jurisdiction to adopt substantially identical provisions within six months of the publication of the final rule.Some states will adopt far earlier than the federally allowable 6-month period!

Which Employers Must Submit Information Electronically? Establishments with 250 or more employees that are subject to OSHA's recordkeeping regulation must electronically submit to OSHA certain information from:the Log of Work-Related Injuries and Illnesses (OSHA Form 300),the Summary of Work-Related Injuries and Illnesses (OSHA Form 300A), andthe Injury and Illness Incident Report (OSHA Form 301). For employers in this “large establishment” category, there is an electronic submission deadline of July 1, 2017, for form 300A. Also, by July 1, 2018, employers in this category must electronically submit forms 300A, 300 and 301. Beginning in 2019, the employer electronic submission deadline will change from July 1 to March 2.

Which Employers Must Submit Information Electronically? Establishments with 20-249 employees in certain high-risk industries must electronically submit to OSHA information from the Summary of Work-Related Injuries and Illnesses (OSHA Form 300A).High-risk industries include (but are not limited to) construction (NAICS 23), manufacturing (NAICS 31-33), a wide variety of trucking and transportation industries, warehousing/storage (NAICS 4931), certain health care employers and hospitals, and commercial/industrial repair and maintenance employers. A list of regulated employers in this size category is available on the OSHA website at “Recordkeeping: NAICS Codes for Electronic Submission.”

Which Employers Must Submit Information Electronically? For employers in this “20 to 249 employee establishment” category, there is a submission deadline of July 1, 2017, for form 300A. For 2018, the deadline for employers in this size category to submit form 300A is July 1, 2018. Beginning in 2019, the employer submission deadline will change from July 1 to March 2.

Which Employers Must Submit Information Electronically? Establishments with fewer than 20 employees at all times during the year do not have to routinely submit information electronically to OSHA.For purposes of evaluating the number of employees at an establishment, OSHA requires employers to count full-time, part-time, seasonal and temporary workers.

How to Submit Information to OSHA Electronically OSHA is currently working on a secure portal/website for the electronic submission of information. We understand that the website will also feature web forms for direct data entry and instructions for other electronic means of submission such as file uploads. Finally, there may even be a means to submit data from a mobile electronic device.

OSHA’s Anti-Retaliation Perspectives The new rule requires that employers “… establish a reasonable procedure for employees to report work-related injuries and illnesses promptly and accurately.”The rule does not define what is “reasonable.”But it indicates that “[a] procedure is not reasonable if it would deter or discourage a reasonable employee from accurately reporting a workplace injury or illness….”Further, the rule prohibits employers from discharging or in any manner discriminating against any employee for reporting a work-related injury or illness. Such adverse actions are not only violations of the new provisions of the standard, OSHA notes that such actions are also violations of section 11(c) of the OSHAct.9

OSHA’s Anti-Retaliation Perspectives OSHA initially imposed an August 10, 2016 deadline for employers to comply with the rule’s provisions requiring employers to inform employees of their right to report work-related injuries/illnesses free from retaliation and to adopt reasonable injury/illness reporting rules.As noted previously, OSHA recently announced a delay in enforcement of these provisions until November 1, 2016.OSHA commented that the delay would allow additional outreach to the regulated community. Further, OSHA is developing educational materials for employers and enforcement guidance.For the moment, employers should confirm that they are using the current form of OSHA-approved posting which can be found at: https://www.osha.gov/Publications/poster.html10

OSHA’s Anti-Retaliation Perspectives OSHA’s comments surrounding the release of the new electronic reporting rule reinforces OSHA’s intent to review certain employer procedures that may have the effect (even unintentionally) of discouraging employee reporting of injuries. For example, OSHA views certain safety incentive programs that provide bonuses or prizes for injury-free periods of time as having the potential to reduce or “chill” the willingness of employees to report occupational injuries/illnesses. In OSHA’s view, such programs could be unlawful under section 11(c) of the OSHAct if they have such potential.Alternative incentive programs that OSHA supports are things like awards for safety committee service or submission of safety ideas.

OSHA’s Anti-Retaliation Perspectives Some employers have long histories of providing such safety incentives which can sometimes be described in employee policies, handbooks, and collective bargaining agreements.In connection with OSHA’s perspectives on the potential effect of such incentives on underreporting of injuries, some employers have curtailed or are working to delete such incentives.But, some employers are naturally concerned about things such as the effect on employee morale, possible safety effects, and collective bargaining issues in relation to a complete cessation of such incentives.

OSHA’s Anti-Retaliation Perspectives If an employer is considering the continued use of such incentives, there is a real risk of OSHA review and enforcement in relation to such incentives, as noted in OSHA’s comments.Moreover, we are aware of a recent (effective May 27, 2016) OSHA pilot program in Region 7 (covering the states of Missouri, Kansas, Nebraska and companies under federal enforcement in Iowa) which extends the current Severe Violator Enforcement Program to whistleblower/retaliation cases under OSHA.That pilot program, entitled “W-SVEP” looks at a variety of factors in cases where OSHA finds that a whistleblower complaint has merit, including “where a company has a rate-based incentive program for work-related injuries.”

OSHA’s Anti-Retaliation Perspectives Time will tell as to whether the pilot “W-SVEP” program will be extended out to other areas. In the meantime, employers will need to critically review their safety incentive programs in relation to OSHA’s expectations.In any event, this is another reason for employers to consider changing such existing rate-based incentive policies/programs.For those employers who decide to continue such rate-based programs, despite such enforcement risks, there are a few points that might be considered.

OSHA’s Anti-Retaliation Perspectives A suggestion – Consider changing rate-based policy provisions to specifically include a disqualification from any such safety incentive where the company finds evidence of any underreporting.A suggestion – Consider changing rate-based policy provisions to specifically include disciplinary sanctions to any person who is found to have participated in any underreporting.A suggestion – Consider the adoption of an internal audit process that is designed to review, catch and address potential underreporting issues.A suggestion – Consider including incentives for things like: participation on safety committees; safety suggestions that are adopted; and reports of potential safety issues.

OSHA’s Anti-Retaliation Perspectives OSHA also views many employers’ “rigid” prompt reporting of injuries requirements as potentially having a chilling effect on employee injury reporting: “Commenters also raised concerns about rigid prompt-reporting requirements in place at some workplaces that have resulted in employee discipline for late reporting even though employees could not reasonably have reported their injuries or illnesses earlier.”OSHA further notes that: “Many employers have policies that require the immediate reporting of a work-related injury by the worker, and for some employers failure to follow this requirement will result in discipline, regardless of the circumstances. In some cases workers may be unaware that they have suffered an injury, since the pain or symptoms do not manifest until later . . . This is particularly true for musculoskeletal injuries.”16

OSHA’s Anti-Retaliation Perspectives Additional OSHA comments: “OSHA disagrees with comments that express support for employers who require immediate reporting of injuries and illnesses on the grounds that such requirements are necessary for accurate recordkeeping, to prevent fraud, and to address injuries before they get worse.”“OSHA recognizes that employers have a legitimate interest in maintaining accurate records and ensuring that employees are reporting genuine work-related injuries and illnesses in a reasonably prompt manner. These interests, however, must be balanced with fairness to employees who cannot reasonably discover their injuries or illnesses within a rigid reporting period and with the overriding objective of part 1904 to ensure that all recordable work-related injuries and illnesses are recorded.”17

OSHA’s Anti-Retaliation Perspectives Accordingly, in OSHA’s view, for a reporting procedure to be reasonable and not unduly burdensome, it must allow for reporting of work-related injuries and illnesses within a reasonable timeframe after the employee has realized that he or she has suffered a work-related injury or illness.A suggestion – Consider changing policy provisions to require prompt reporting of workplace safety “incidents” and specifically include a requirement of prompt reporting, even of “near miss” and “property damage only” incidents.A suggestion – Before providing discipline for late reports of injuries, consider the facts of each case to determine whether any of OSHA’s concerns might apply to the case.18

OSHA’s Anti-Retaliation Perspectives Further, OSHA has stated its view that it is a violation of section 11(c) of the OSHAct if an employer has “blanket” post-injury drug testing.OSHA indicates that the new rule does not prohibit employers from drug testing employees; however, the drug testing should be limited to situations where employee drug use is likely to have contributed to the incident and for which the drug test can accurately identify impairment caused by drug use.OSHA has further commented that: “[e]mployers need not specifically suspect drug use before testing, but there should be a reasonable possibility that drug use by the reporting employee was a contributing factor to the reported injury or illness in order for an employer to require drug testing.”

OSHA’s Anti-Retaliation Perspectives OSHA also notes that: “A few commenters also raised the concern that the final rule will conflict with drug testing requirements contained in workers' compensation laws. This concern is unwarranted. If an employer conducts drug testing to comply with the requirements of a state or federal law or regulation, the employer's motive would not be retaliatory and the final rule would not prohibit such testing. This is doubly true because Section 4(b)(4) of the Act prohibits OSHA from superseding or affecting workers' compensation laws….”

OSHA’s Anti-Retaliation Perspectives A suggestion – Review “blanket” post-injury drug testing policies now.A suggestion -- Consider changing such policy provisions to require “prompt” reporting of workplace safety “incidents” and specifically include a requirement of prompt reporting, even of “near miss” and “property damage only” incidents.A suggestion – Consider adding language to such policies to provide for “reasonable suspicion” in relation to the facts of the incident and nature of the injury(s), if any, and ensure that the testing is designed to accurately identify impairment caused by substance use. A suggestion -- Before authorizing substance abuse testing, consider the facts of each case to determine whether any of OSHA’s concerns might apply to the case.

OSHA’s Rationale for the Electronic Reporting Rule The process is expected to improve OSHA’s ability to more promptly and effectively analyze workplace injury/illness trends, respond to statistically significant indicators, and enable OSHA to more efficiently engage its compliance and enforcement activities.OSHA has also indicated its intent to publicly disclose some of the data collected on its website.

OSHA’s Rationale for the Electronic Reporting RuleOSHA believes that making such public disclosures may be another way to encourage some employers to improve the level of occupational health and safety in their facilities. OSHA has noted that interested parties in such public disclosure would include employers, employees, employee representatives (such as union or other representatives) and researchers.With respect to certain personally identifiable information normally found on employers’ OSHA logs and related records, OSHA has stated that it has effective safeguards in place to prevent disclosure of such information.

A Recent Lawsuit Against OSHA Over The Rule On Friday, July 8, 2016, the National Association of Manufacturers, the Associated Builders and Contractors, Inc., and other groups sued OSHA in Texas federal court over the new electronic reporting rule. Among other things, the suit seeks a preliminary injunction against implementation of the anti-retaliation provisions of the rule.The lawsuit assets that the rule contains anti-retaliation provisions that improperly limit post accident drug testing. Further, the lawsuit contends that there is no reliable evidence to support OSHA’s claim that safety incentive plans or post-accident drug testing programs lead to materially inaccurate reporting or underreporting of occupational injuries/illnesses.24

A Recent Lawsuit Against OSHA Over The Rule The lawsuit also contains allegations that: OSHA did not adopt proper regulatory analysis; OSHA overstepped the agency’s statutory authority, and that the new rule is unclear. Stay tuned for developments in that lawsuit.25

Will the new electronic reporting process have an effect on OSHA inspections/reviews of employer sites ?To answer this, let’s take a quick look at another OSHA rule that has already gone into effect, as of January, 2015 – the Fatality and Catastrophe Reporting (“FCR”) Rule.The “old” FCR rule required employers to report to OSHA within 8 hours:All work-related fatalities;All work-related hospitalizations of three or more employees.

OSHA’s Revised FCR Rule – A SummaryAs of January 1, 2015, the revised FCR rule now requires the employers report to OSHA as follows:Any work-related fatality within 8 hours of the employer’s knowledge of the fatality;All work-related hospitalizations of one or more employees within 24 hours of the employer’s knowledge of the hospitalization;All work-related amputations within 24 hours of the employer’s knowledge of the amputation;All work-related losses of an eye within 24 hours of the employer’s knowledge of the loss.

OSHA Statistics – FCR RuleFollowing adoption of the rule, and in 2015, OSHA received over 10,000 reports under the revised rule.Does not include the state plan jurisdictions like Indiana.About 74% of the reports were hospitalizations.About 62% of the reports were addressed by OSHA sending a Rapid Response Investigation letter asking for employer information.Remainder were OSHA inspections (especially in the amputation area).

Likely Effect of the New Electronic Reporting Rule One likely outcome of the reports that will be submitted by affected employers under the new electronic reporting rule will be a similar uptick in targeted OSHA inspections, especially where OSHA determines that there are:Particular occupational injury/illness trends at a particular employer’s site(s);Statistically significant indicators, such as (but not limited to) injury and illness rates of an employer(s) that exceed industry norms; andIssues concerning particular kinds of significant injuries/illnesses, especially those that are the targets of national emphasis or regional emphasis programs.

What Can Employers Do Now To Get Ready?

Preparation For/Dealing With An OSHA Inspection For purposes of the topic, I usually break this up into three (3) distinct phases:Pre-inspection/pre-incident;During the inspection; andPost citation.The first phase is the only one that employers have a good deal of control over.Activity in phases two and three are mostly (but not completely) outside of an employer’s control. 31

Key Point No. 1 – Preparation Begins Before Any InvestigationWhat is your confidence level about:Your current OSHA posting – is it up to date?Your current drug testing policies – are they “blanket testing” type or more of a case-by-case assessment based upon reasonable suspicion of drug use? How To Prepare For An OSHA Investigation32

Key Point No. 1 – Preparation Begins Before Any Investigation, cont. What is your confidence level about:Whether your drug testing methods and timing of drug testing in relation to incidents can accurately identify impairment caused by drug use?Whether your policies contain the kind of safety incentive programs or practices that concern OSHA?

Key Point No. 1 – Preparation Begins Before Any Investigation, cont. What is your confidence level about:Whether your policies contain provisions about failing to promptly report occupational injuries and illnesses, as well as “near miss” and property damage only incidents? Whether your policies contain provisions for checking/auditing to catch underreporting of incidents, injuries and illnesses, if any?Whether your policies also permit drug testing where there is reasonable belief that drug use may have contributed to a “near miss” or “property damage only” occupational incident?

Key Point No. 1 – Preparation Begins Before Any Investigation, cont. Further, in advance of OSHA’s review of the injury/illness data, employers may wish to:Review their current logs and incident reports to determine whether discernable trends, patterns and/or statistically significant issues are evident. One benchmark might be industry-specific injury/illness rates in comparison with individual employer history. By reviewing such data now, employers may be in position to employ effective responsive actions (or at least confirm compliant and good safety/health status) in advance of any electronic reporting obligations.

Key Point No. 1 – Preparation Begins Before Any Investigation, cont. What is your confidence level about:The state of your training? Is it more than toolbox talks? Is it documented?The state of your written safety program and injury/illness reporting processes?The state of your tools, machinery, and equipment (including PPE)?

What is your confidence level about: The state of your regular reviews of the jobsite(s) to catch and correct non-compliance?The state of your safety disciplinary systems?The state of your documentation?The knowledge of owner’s/operator’s manuals?The status of prior audits of your operations?Any safety committee meeting minutes? Key Point No. 1 – Preparation Begins Before Any Investigation, cont. 37

What is your confidence level about: The training/experience of your site leadership?The training/experience of your employees?The amount of training provided – is it only at the minimum levels of legal compliance?Can they represent well if/when they are questioned by OSHA and are they conversant with applicable policies, laws, regulations, and standards?Key Point No. 1 – Preparation Begins Before Any Investigation, cont. 38

Test points: Are you relying upon your own view regarding those points above?Has anyone from outside your department, organization or firm reviewed/audited those areas on an independent basis?Should that be done to provide an extra measure of comfort? If so, who should do it and how should it be done?Key Point No. 1 – Preparation Begins Before Any Investigation, cont.

Key Point No. 1 – Preparation Begins Before Any Investigation, cont.Who should be designated as your key contact person?Sufficient technical knowledgeSufficient personal skills in working with agencySufficient institutional knowledgeAuthority to address safety/health issues pointed out by inspectorBest if the key contact person is on-site 40

Key Point No. 2 – Conduct of Investigation Cooperate.Respond to Information Requests.Investigators are generally friendly and professional, but they are investigators.Hourly employees can be questioned by the investigator in private.Management employees can bind the company -- legal counsel should be considered for representation during interviews.41

Key Point No. 2 – Considerations During Investigations Providing advance notice of inspection is a criminal offense.Destruction and/or hiding evidence is a criminal offense. There have been some notable criminal cases brought against individuals and employers who have attempted to interfere with a lawful government investigation by attempting to change documents, hide or destroy documents, etc.Lying to investigators is a criminal offense.42

Does Legal Counsel Have A Role In Inspections? First, a caveat – I have somewhat of bias here.I do not think that lawyers need to be part of every inspection.There are certain situations where a lawyer should be considered as a member of an employer’s inspection support team. 43

Key Point No. 3 – Counsel May Have A Role In Some InspectionsThere are, however, situations where I believe that a lawyer(s) should strongly be considered to be a part of an inspection support team (either on the team or as a resource to support the team and its conclusions). Some examples (this is not an exhaustive list):Any case in which there is a fatality;Any case in which there is any other reportable OSHA incident (amputation/loss of an eye/hospitalization);Cases in which there are multiple contractors/employers on the affected jobsite (since many of those contractors/employers may be engaging counsel);44

Key Point No. 3 – Counsel May Have A Role In Some InspectionsCases in which there is a large scale event, even if the incident did not involve a reportable OSHA incident (e.g., explosion, chemical release, fire, major property damage, etc.);Cases in which there is a claim of safety-related retaliation or whistleblowing;Cases in which there are concerns about disclosure of trade secrets/proprietary business information;Cases in which there is a potential indemnity obligation of the employer to others (e.g., in a project contract clause or rider);Cases in which there are concerns over insurance coverage;Cases in which a potential claimant has retained counsel; 45

Key Point No. 3 – Counsel May Have A Role In Some InspectionsAny case in which a criminal investigation is being conducted or is reasonably possible;Cases in which a search warrant may be requested by the employer;Cases in which there are unclear/complex legal compliance issues presented.46

After An Inspection -- What To Do If You Are Cited The 15-day period within which employers have to:Request and schedule an informal conference with OSHA;If that informal conference is unsuccessful, timely file a written Notice of Contest (OSHA) and get a file-marked copy for future reference. 47

Key Point No. 4 – Work with Counsel EarlyTimeframes are short! Better not to rush or get pressured by time.This does not mean that counsel will or should go to the informal conference!But, counsel may help with preparation for the informal conference by providing talking points, case law, interpretations, etc. to help support employer defenses.Counsel may also help with identifying defenses/issues (misconduct or other affirmative defenses, grouping citations, reducing classifications, etc.)Counsel may also help with drafting the Notice of Contest or Petition for Review. 48

Union Worksites/Workforces Key Point No. 5 – Unions/Employee Have RightsUnions/employees have inspection participation rights.Unions/employees have post-citation intervention rights.Typically, they have the ability to provide objections to abatement timeframes (and perhaps methodology).Although, in practice, agencies will listen to union objections about penalty/classification adjustments.49

Key Point No. 5 – Unions/Employee Have RightsUnions may participate in settlement discussions.Unions may request conditions/special terms in settlement agreements.Critical importance of joint employer/union safety committee meeting minutes/notes.50

What Can You Do To Protect Yourself? Final Key PointsAssume your facility and its records will be investigated at some point and take proactive action now.Take action to improve the frequency and quality of training and retraining. Look at past audits/facility reviews now. Confirm adherence to owner’s and operator’s manuals . Review equipment and machinery for proactive maintenance/replacement. Check the status of your employment-related postings. 51

What Can You Do To Protect Yourself? Final Key PointsEnsure that you’ve covered the preparation steps discussed earlier, including review of your policies.Involve legal counsel as appropriate. Review your disciplinary processes to ensure coverage and response to safety issues. Make regular tours of the worksite to try to audit compliance and document the tours, findings, and prompt and proper follow-up! 52

Questions? 53Gregory N. DaleFaegre Baker Daniels LLP(317) 237-1330gregory.dale@faegrebd.com