Get the Record Straight: OSHA s E-Recordkeeping & Anti-Retaliation Rule. February 22, 2017

Transcription

1 Get the Record Straight: OSHA s E-Recordkeeping & Anti-Retaliation Rule February 22, 2017

2 Agenda Welcome Discussion: Injury Data E-Submission Requirements Publication of Employers Injury Data Anti-Retaliation Elements of the Rule Future of the E-Recordkeeping Rule Q & A session 2

3 OSHA Practice Group, Conn Maciel Carey LLP Eric J. Conn Founder, Chair of the OSHA Workplace Safety Practice Group Conn Maciel Carey LLP Lindsay A. DiSalvo Associate in the Firm s OSHA and Employment Practices Conn Maciel Carey LLP 3

4 Housekeeping Webinar is 45 minutes duration, and recorded. Please close out other open applications on computer. Questions will be answered during the Q & A Period. 4

5 OSHA s New Final Rule Improve Tracking of Workplace Injuries and Illnesses 5

6 Electronic Injury & Illness Data Submission with Conn Maciel Carey LLP, sponsored by Intelex.

7 Injury Data Electronic Submission May 12, 2016, OSHA published the Final Rule on Electronic Data Submission of Injury and Illness Recordkeeping 2 Major Provisions: 1. Establishments w/ 250+ workers must annually submit to OSHA; 300 Logs; 301 Incident Reports; and 300A Annual Summaries. 2. Establishments w/ 20+ workers in High Hazard Industries must annually submit 300A Summaries. Forms: 7

8 High Hazard Industries: Threshold Industry Average 2.0 = Threshold Industry Average DART Rate (Days Away, Restrictions & Transfers) for High-hazard Industries in Recordkeeping Rule Page = Nat l Average DART Rate across all industries 3.6 = Threshold Industry Average DART Rate used to define high-hazard industries for OSHA s Site Specific Targeting inspection program OSHA High Hazard List 2016: 8

9 OSHA High Hazard Industries List: 2016 NAICS Industry NAICS Industry 11 Agriculture, forestry, fishing and hunting 4842 Specialized freight trucking 22 Utilities 4851 Urban transit systems 23 Construction 4852 Interurban and rural bus transportation Manufacturing 4853 Taxi and limousine service 42 Wholesale trade 4854 School and employee bus transportation 4413 Automotive parts, accessories, and tire stores 4855 Charter bus industry 4421 Furniture stores 4859 Other transit and ground passenger transportation 4422 Home furnishings stores 4871 Scenic and sightseeing transportation, land 4441 Building material and supplies dealers 4881 Support activities for air transportation 4442 Lawn and garden equipment and supplies stores 4882 Support activities for rail transportation 4451 Grocery stores 4883 Support activities for water transportation 4452 Specialty food stores 4884 Support activities for road transportation 4521 Department stores 4889 Other support activities for transportation 4529 General merchandise stores 4911 Postal service 4533 Used merchandise stores 4921 Couriers and express delivery services 4542 Vending machine operators 4922 Local messengers and local delivery 4543 Direct selling establishments 4931 Warehousing and storage 4811 Scheduled air transportation 5152 Cable and other subscription programming 4841 General freight trucking 5311 Lessors of real estate 9

10 Applicable Employee Count Applicable employee count: Total employees at peak employment during year Includes temps, seasonal workers and part-time employees Data submission requirements tied to establishments Single physical location where business is conducted or where services or industrial operations are performed 10

11 Applicable Employee Count Requires location-by-location assessment: Employee count by corporate entity at each particular location; Whether number meets one of the reporting thresholds; For level, is location a high-hazard industry (based on NAICS code for the establishment) May differ for HQs and diff. locations 11

12 Recordkeeping & Reporting Rule Quadruples number of employers required to submit injury data to the Department of Labor Establishments w/ 250+ Employees 38,000 to 129,000 sites OSHA to receive detail on 1,325,000 cases! Establishments w/ 20+ Employees 160,000 to 440,000 sites 12

13 Recordkeeping Data Submission Data to be submitted electronically through a secure website May submit from HQ or each indiv. establishment, but data must be indiv. to establishment OSHA to attempt to scrub employeeidentifying info In July 17 OSHA may begin publishing employer- specific info online (without context) 13

14 Our new rule will nudge employers to prevent work injuries to show investors, job seekers, customers & the public they operate safe and well-managed facilities. Access to injury data will also help OSHA better target compliance assistance and enforcement resources... 14

15 Adverse Impact of Publishing Data OSHA intends for the data to harm employers by: Discouraging consumers from doing business with them; Thwarting contracting opportunities with customers; Providing ammunition to your competitors and organized labor for organizing campaigns or at the bargaining table; Scaring off current and prospective employees; Eliminating access to business loans; and Negatively impacting insurance coverage and rates. 15

16 Key Reporting Deadlines Recordkeeping Forms for Year Establishments w/ 250+ Employees Establishments w/ Employees Deadline to Submit Forms As 300As July 1, Logs, 300As & 301s 300As July 1, and thereafter 300 Logs, 300As & 301s 300As March 2, 2019 (March 2 nd each subsequent year) 16

17 Stakeholder Criticisms Regulatory history does not ID gap in existing data or explain OSHA s need for or capacity to use the data Increase risk of under-reporting Harms relationships w/ current & prospective employees & customers, fuels civil lawsuits & union organizing campaigns, and cuts access to insurance and business loans Undermines No-Fault Injury Recordkeeping Substantially underestimates time / burdens 17

18 Proposed Rule Revisited August 14, OSHA received OMB approval to reopen the rulemaking record So many flaws in the rule to address, but re-opened to go further Responding to the universal complaints that this rule will lead to underreporting/ under-recording Published a supplemental notice of proposed rulemaking focusing on one issue, employers practices that discourage injury reporting 18

19 Anti-Retaliation Elements of E-Recordkeeping Rule with Conn Maciel Carey LLP, sponsored by Intelex.

20 Internal Injury Reporting Policies As of December 1, 2016, Employers must: Inform employees of right to report workplace injuries Inform employees of right to report work related injuries free from discrimination or retaliation Update internal injury reporting policies to remove unreasonable elements (i.e., policy discourages employees from reporting injuries and illnesses) OSHA may enforce retaliation WITHOUT whistleblower 20

21 OSHA Guidance Memo Issued October 19, 2016 Attempts to provide detail around vague language of the standard Provides examples of reasonable injury reporting policies, drug testing policies, and safety incentive programs. 21

22 Internal Injury Reporting Policies Employers may be cited for implementing reporting policies that have perceived retaliatory effect for reporting workplace injuries: Discipline for late injury reporting Discipline for violating vague rules ( work safely or maintain situational awareness ), especially if only after injuries Reasonable reporting policy may require employees to report injury as soon as practicable after realizing they have a reportable injury Not reasonable to discipline employee for failing to report before they realize they are injured or while incapacitated Discipline for violating safety rule only reasonable if consistent 22

23 Drug Testing Drug testing may dissuade a reasonable employee from reporting a work-related injury b/c of invasion of privacy Post-injury drug testing may not be a form of discipline Prohibits Blanket post-injury drug testing policies Permits the following drug testing: Pre-employment and Random Drug Testing To comply w/ state or fed law (e.g., DOT mandatory post-accident test) When required by WC insurer (including premium reduction policies for post-accident drug testing) Post-accident when likely contributed & test can ID impairment 23

24 Post-Injury Drug Testing May be used as tool to evaluate root causes of workplace injury Rule only prohibits drug testing employee for reporting work-related injuries w/out objectively reasonable basis for doing so Central inquiry is whether employer had reasonable basis to believe drugs could have contributed to injury (w/ 4 factors): 1. Whether employer had reasonable basis for concluding drug use could have contributed to injury; 2. Whether other employees involved in incident also tested; 3. Whether heightened interest to identify drug use b/c high hazard work task; and 4. Whether drug test capable of measuring impairment at time injury occurred (only considered for alcohol tests) 24

25 Post-Injury Drug Testing OSHA offered the following example: Crane accident injures employees working nearby (but not the crane operator Cause of the accident is unknown, but reasonably possible it could have been caused by crane operator error or mistakes by others like the spotter or rigger Reasonable to test all employees whose conduct could have caused accident, regardless if they were injured Reasonably possible test results could provide insight re: root cause Unreasonable to test only injured employees 25

26 Safety Incentive and Compensation Programs OSHA concerned about chilling effect and retaliatory nature of certain types of safety incentive programs: Bonus (e.g., pizza party, safety bingo, gift cards, etc.) for employees or crew for having no injuries over a certain period of time Raffle in month that all employees comply w/ legitimate safety rule (e.g., using hard hats and fall protection) Reward or deny benefit or bonus based on injury rate (e.g., DART rate) Bonus employees observed working safely, reporting unsafe conditions, completing safety training, or joining safety committee Front line supervisor annual bonus tied to injury rate Senior manager or executive annual bonus tied to injury rate 26

27 Legal Challenge to Rule Industry sued in TX fed. court challenging anti-retaliation rule: OSHA did not show anti-relation provisions would reduce injuries No APA-required regulatory impact cost/benefit analysis OSHA enacted rule under improper bias re: Safety Incentive Programs and Post-Injury Drug Testing, ignoring contradictory evidence of relation to underreporting. Moved for P.I. to bar enforcement until Dist. Court rules OSHA opposed P.I. on grounds that irreparable harm cannot be shown b/c it had not yet interpreted the rule District Court Judge denied the Preliminary Injunction motion 27

28 What Should Employers Do Now? Refresher training on recordkeeping requirements Audit injury and illness recordkeeping forms Evaluate and update: i. Injury reporting policies (not so burdensome as to discourage reporting ii. iii. Drug test policy (no punishment for injury report and do comply w/ W.C. & other laws) Safety incentive programs & compensation schemes (not chill injury reporting) Consider increasing random drug testing Post latest version of OSHA Rights Poster Hide the empty pizza boxes when OSHA shows up 28

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31 Questions? Come join the discussion at the EHSQ Community with Conn Maciel Carey LLP, sponsored by Intelex. 31

32 Contact OSHA Practice Group, Conn Maciel Carey LLP Eric J. Conn Founder, Chair of the OSHA Workplace Safety Practice Group Tel: (202) Lindsay A. DiSalvo Associate in the Firm s OSHA and Employment Practices Tel: (202) kmcmahon@connmaciel.com 32

33 Established in An OSHA Co-Sponsor EHSQ Software, over a million users Worldwide. Increase customer s profits and protect goodwill. Peer reviewed as a best managed company.

34 Eric J. Conn Chair of the OSHA Workplace Safety Practice Group at Conn Maciel Carey, where he focuses his practice on all aspects of occupational safety & health law: Represents employers in inspections, investigations & enforcement actions involving OSHA, CSB, MSHA, & EPA Responds to and manages investigations of catastrophic industrial,construction, and manufacturing workplace accidents, including explosions and chemical releases Handles all aspects of OSHA litigation, from criminal prosecutions to appeals of citations Writes & speaks regularly on safety & health law issues Conducts safety training & compliance counseling 34

35 Lindsay A. DiSalvo An Associate at Conn Maciel Carey in the Firm s OSHA and Employment Practices where she: Represents and advises employers in all aspects of the employer-employee relationship including wage/hour disputes and claims of discrimination Reviews and revises employee handbooks and workplace policies and procedures Represents employers during inspections and investigations conducted by the federal and state OSHA Advises and counsels employers in responding to notices of employee safety complaints and OSHA citations Helps develop and audit safety and health programs 35

36 Appendix with Conn Maciel Carey LLP, sponsored by Intelex.

37 OSHA High Hazard Industries List: 2016 NAICS Industry NAICS Industry 11 Agriculture, forestry, fishing and hunting 4842 Specialized freight trucking 22 Utilities 4851 Urban transit systems 23 Construction 4852 Interurban and rural bus transportation Manufacturing 4853 Taxi and limousine service 42 Wholesale trade 4854 School and employee bus transportation 4413 Automotive parts, accessories, and tire stores 4855 Charter bus industry 4421 Furniture stores 4859 Other transit and ground passenger transportation 4422 Home furnishings stores 4871 Scenic and sightseeing transportation, land 4441 Building material and supplies dealers 4881 Support activities for air transportation 4442 Lawn and garden equipment and supplies stores 4882 Support activities for rail transportation 4451 Grocery stores 4883 Support activities for water transportation 4452 Specialty food stores 4884 Support activities for road transportation 4521 Department stores 4889 Other support activities for transportation 4529 General merchandise stores 4911 Postal service 4533 Used merchandise stores 4921 Couriers and express delivery services 4542 Vending machine operators 4922 Local messengers and local delivery 4543 Direct selling establishments 4931 Warehousing and storage 4811 Scheduled air transportation 5152 Cable and other subscription programming 4841 General freight trucking 5311 Lessors of real estate 37

38 OSHA High Hazard Industries List: 2016 NAICS Industry NAICS Industry 5321 Automotive equipment rental and leasing 6242 Community food and housing, and emergency and other relief services 5322 Consumer goods rental 6243 Vocational rehabilitation services 5323 General rental centers 7111 Performing arts companies 5617 Services to buildings and dwellings 7112 Spectator sports 5621 Waste collection 7121 Museums, historical sites, and similar institutions 5622 Waste treatment and disposal 7131 Amusement parks and arcades 5629 Remediation and other waste management services 7132 Gambling industries 6219 Other ambulatory health care services 7211 Traveler accommodation 6221 General medical and surgical hospitals 7212 RV (recreational vehicle) parks and recreational camps 6222 Psychiatric and substance abuse hospitals 7213 Rooming and boarding houses 6223 Specialty (except psychiatric and substance abuse) hospitals 7223 Special food services 6231 Nursing care facilities 8113 Commercial and industrial machinery and equipment* repair and maintenance 6232 Residential mental retardation, mental health and substance abuse facilities 8123 Dry-cleaning and laundry services 6233 Community care facilities for the elderly 6239 Other residential care facilities 38