OSHA Announces a New Attitude Toward Worker Safety Incentive Programs

By Kathleen Jennings (kjj@wimlaw.com)

Last week, the Department of Labor announced that it is reversing the safety incentive programs guidelines issued during the Obama administration. What does this mean for employers? It means that employers can offer incentives to employees, such as pizza parties, cash bonuses, or other prizes, as incentives for days without reported injuries or accidents in the workplace. According to the DOL, it believes that many employers who implement safety incentive programs and/or conduct post-incident drug testing do so to promote workplace safety and health. In addition, evidence that the employer consistently enforces legitimate work rules (whether or not an injury or illness is reported) would demonstrate that the employer is serious about creating a culture of safety, not just the appearance of reducing rates.

OSHA states that incentive programs can be an important tool to promote workplace safety and health. One type of incentive program rewards workers for reporting near-misses or hazards, and encourages involvement in a safety and health management system. Positive action taken under this type of program is always permissible under § 1904.35(b)(1)(iv). Another type of incentive program is rate-based and focuses on reducing the number of reported injuries and illnesses. This type of program typically rewards employees with a prize or bonus at the end of an injury-free month or evaluates managers based on their work unit’s lack of injuries. Rate-based incentive programs are also permissible under § 1904.35(b)(1)(iv) as long as they are not implemented in a manner that discourages reporting. Thus, 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 under § 1904.35(b)(1)(iv) as long as the employer has implemented adequate precautions to ensure that employees feel free to report an injury or illness.

A statement that employees are encouraged to report and will not face retaliation for reporting may not, by itself, be adequate to ensure that employees actually feel free to report, particularly when the consequence for reporting will be a lost opportunity to receive a substantial reward. An employer could avoid any inadvertent deterrent effects of a rate-based incentive program by taking positive steps to create a workplace culture that emphasizes safety, not just rates. For example, any inadvertent deterrent effect of a rate-based incentive program on employee reporting would likely be counterbalanced if the employer also implements elements such as:

  • 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.

Safety incentive programs have been criticized by some as creating a disincentive for employees and supervisors to report workplace accidents, injuries, near misses or other incidents. No one wants to be that guy who reports the incident that keeps his whole department from getting a prize or party. Another concern is that failure to report incidents, even minor incidents and near misses, defeats the whole purpose of a proactive safety program, which is to generate as much information as possible on trends so that steps can be taken to curb future problems. Thus, the Obama administration frowned on such programs and discouraged them.

Now that the restrictions on safety incentive programs are relaxed, companies should use care in implementing such programs so that they do not discourage employees from reporting legitimate safety issues. Before implementing any kind of safety incentive program, a company should have a comprehensive safety program in place that creates a culture of safety. A safety incentive program is just one small piece of that comprehensive program.

Kathleen Jennings, Principal is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. She defends employers in employment matters, such as sexual harassment, discrimination, Wage and Hour, OSHA, restrictive covenants, and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

©2018 Wimberly Lawson

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Wimberly Lawson and the user or browser. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.

 

OSHA Audit Recommends More Inspections for Amputations and Serious Injuries, But That’s Unlikely to Happen Anytime Soon

By Kathleen J. Jennings (kjj@wimlaw.com)

The U.S. Department of Labor Office of Inspector General (OIG) has issued the results of an audit of OSHA’s fatality and severe injury reporting program. The main conclusion: OSHA needs to take steps to prevent underreporting of fatalities and injuries, and ensure employers correct identified hazards. The audit bases this conclusion on the following findings:

• OSHA had no assurance employers reported work-related inpatient hospitalizations, amputations, and losses of an eye. Estimates show employers do not report 50 percent or more of severe injuries. Moreover, OSHA did not consistently follow its policy to issue a citation when an employer failed to report work-related fatalities and severe injuries within the specified timeframes.

• For an estimated 87 percent of employer investigations, OSHA lacked justification for its decision to allow employers to perform an investigation, or closed investigations without sufficient evidence employers had abated the hazards that had caused the accident. Furthermore, OSHA did not monitor any employer investigations to ensure accuracy and completeness of the information reported.

By way of background, in January 2015, OSHA made significant changes to employer reporting requirements for work-related fatalities and severe injuries. OSHA’s revised regulations require employers to report all work-related fatalities, inpatient hospitalizations, amputations, and losses of an eye within specific timeframes; and encourage employers to investigate these types of incidents and abate the hazards identified to prevent future accidents.

One of the audit’s recommendations is for OSHA to conduct inspections on all Category 1 incidents (a fatality, two or more in-patient hospitalizations, emphasis programs [such as amputation prevention], and imminent danger). Is this likely to happen any time soon? Probably not; OSHA simply does not have sufficient personnel to investigate every serious workplace injury.

The decision as to whether the report of a Category 1 injury will result in an OSHA inspection is within the discretion of the Area Director, so the probability of an OSHA inspection following such an injury will depend upon the Region where an employer operates. As a practical matter, when an employer reports a serious injury to OSHA, it should be ready for an OSHA inspector to show up at the facility.

Pro tip: We’ve said it before, and we’ll say it again: a company has the right to have its counsel present for an OSHA inspection. We recommend that company counsel be involved as soon as a serious workplace injury occurs so that counsel can manage OSHA.

Kathleen Jennings, Principal is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. She defends employers in employment matters, such as sexual harassment, discrimination, Wage and Hour, OSHA, restrictive covenants, and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

©2018 Wimberly Lawson

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Wimberly Lawson and the user or browser. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.

Certain Employers Required to Electronically Submit Form OSHA 300A By July 1

By Kathleen Jennings (kjj@wimlaw.com)

Some companies may not be aware that effective July 1, 2018, they are required to report certain information electronically to OSHA pursuant to the Improve Tracking of Workplace Injuries and Illnesses final rule.

Establishments with 250 or more employees that are required to keep injury and illness records, as well as establishments with 20-249 employees in certain high-risk industries must submit information from their 2017 Form 300A by July 1, 2018. Beginning in 2019 and every year thereafter, the information must be submitted by March 2.

Note that covered establishments with 250 or more employees are only required to provide their 2017 Form 300A summary data. OSHA is not accepting Form 300 and 301 information at this time. OSHA announced that it will issue a notice of proposed rulemaking (NPRM) to reconsider, revise, or remove provisions of the “Improve Tracking of Workplace Injuries and Illnesses” final rule, including the collection of the Forms 300/301 data. The Agency is currently drafting that NPRM and will seek comment on those provisions.

In April, OSHA announced that affected employers in state-plan states that have yet to adopt the electronic recordkeeping rule are nevertheless required to submit their 300A data by the July 1 deadline. (These states include California, Maryland, Utah, Washington, and Wyoming.) Employers in those states are required to use federal OSHA’s Injury Tracking Application (ITA) to submit their data.

Some states, such as Washington and Wyoming, have disputed federal OSHA’s authority to require establishments under state plan jurisdiction to follow the federal requirements, and OSHA has admitted that it does not have the authority to cite employers in those states that fail to submit their 300A data by the July 1 deadline. Nevertheless, employers in state-plan states are advised to submit 300A data to federal OSHA by the July 1 deadline.

Kathleen Jennings, Principal is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. She defends employers in sexual harassment and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

©2018 Wimberly Lawson

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Wimberly Lawson and the user or browser. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.

OSHA Workplace Inspections Increase Slightly in 2017

OSHA

By Kathleen Jennings (kjj@wimlaw.com)

In fiscal 2017, Occupational Safety and Health Administration inspectors finished 32,396 inspections, according to agency data.  This is a slight increase from the 31,948 inspections completed in fiscal 2016 (which was the fewest inspections OSHA conducted in 20 years). In contrast, in both fiscal 2011 and 2012, OSHA conducted 40,600 inspections each year. So, while we saw a slight increase in the number of OSHA inspections this year, the overall number is still well below the peak Obama administration years.

What makes this slight increase in the number of OSHA inspections surprising is that OSHA has had to decrease its staff numbers due to a decline in its budget.  What seems to be happening is that OSHA has been concentrating its resources on the types of inspections that had the most impact, in terms of preventing fatalities, severe injuries, and work illnesses.

The industry that saw the greatest increase in inspections was construction, up 9% from 2016.  This may be due, in part, to a resurgence of construction in the economic recovery.

Due to a new fine structure, average fines were up in 2017.  The average fiscal 2017 fines were $65,228 for a willful violation, up 57 percent; $11,359 for a repeat violation, up 30 percent; and $3,553, for a serious violation, up 48 percent.

We expect to see a similar pattern for 2018.

We wish everyone a safe New Year!

Kathleen Jennings, Principal is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. She defends employers in sexual harassment and other employment litigation and provides training and counseling to employers in employment matters.   She can be contacted at kjj@wimlaw.com.

©2017 Wimberly Lawson

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Wimberly Lawson and the user or browser. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.

 

 

Update: OSHA Electronic Reporting Delayed Again–Until December 31, 2017.

OSHA

By Kathleen Jennings (kjj@wimlaw.com)

The twice-delayed deadline for OSHA electronic reporting is upon us.  However, in a December 18 statement, OSHA extended the deadline for a third time, this time to December 31, 2017.  No reason was given for the extension.

As we discussed in a previous post, the following employers must electronically submit information to OSHA by whatever deadline OSHA finally settles upon:

•Establishments with at least 250 workers must electronically submit data from OSHA forms 300, 300A and 301 annually.

•Establishments with 20 to 249 employees that conduct work in industries that OSHA considers “highly hazardous” must electronically submit to OSHA information from form 300A annually. These “high risk” industries include construction, manufacturing, wholesale trade, healthcare, utilities, agriculture, forestry, and more.

It is not clear what OSHA intends to do with the information after it is electronically submitted.  The Trump administration’s nominee to lead OSHA, Scott Mugno, who is Vice President for Safety at FedEx Ground, has not publicly discussed his thoughts on the rule.

Affected employers should not ignore this new electronic reporting rule.  Worksites that do not electronically submit records and are later inspected by OSHA could be cited for not complying with the rule, potentially a willful violation if OSHA believes the refusal was deliberate.

We will continue to provide updates on this issue.

Kathleen Jennings, Principal is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. She defends employers in sexual harassment and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

©2017 Wimberly Lawson

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Wimberly Lawson and the user or browser. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.

OSHA Electronic Injury Reporting: One Step Forward, One Step Back

By Kathleen Jennings (kjj@wimlaw.com)

OSHA appears to be going ahead with implementation of electronic reporting of employer injury data. Business groups including the U.S. Chamber of Commerce have actively opposed this electronic reporting rule, which would make employee injury data public. Nevertheless, earlier this month, the Occupational Safety and Health Administration (OSHA) announced that it will launch the Injury Tracking Application (ITA) on Aug. 1, 2017. The Web-based form allows employers to electronically submit required injury and illness data from their completed 2016 OSHA Form 300A. The application will be accessible from the ITA webpage.

However, the deadline for employers to electronically submit 2016 Form 300A has been pushed back to Dec. 1, 2017 (the initial compliance deadline was July 1), to allow affected entities sufficient time to familiarize themselves with the electronic reporting system, and to provide the new administration an opportunity to review the new electronic reporting requirements prior to their implementation.

According to OSHA, the data submission process involves four steps: (1) Creating an establishment; (2) adding 300A summary data; (3) submitting data to OSHA; and (4) reviewing the confirmation email. The secure website offers three options for data submission. One option will enable users to manually enter data into a web form. Another option will give users the ability to upload a CSV file to process single or multiple establishments at the same time. A third option will allow users of automated recordkeeping systems to transmit data electronically via an application programming interface.

The ITA webpage also includes information on reporting requirements, a list of frequently asked questions and a link to request assistance with completing the form.

Which employers must electronically submit information to OSHA? According to the final rule that became effective on January 1, 2017:

  • Establishments with at least 250 workers must electronically submit data from OSHA forms 300, 300A and 301 annually.
  • Establishments with 20 to 249 employees that conduct work in industries that OSHA considers “highly hazardous” must electronically submit to OSHA information from form 300A annually.

These “high risk” industries include construction, manufacturing, wholesale trade, healthcare, utilities, agriculture, forestry, and more.

The requirements are scheduled to be phased in over two years. In 2017, all “covered establishments” must submit data from 2016 Form 300A. Next year, the rule requires establishments with at least 250 employees to submit information from 2017 Forms 300, 300A and 301. Those with 20 to 249 workers in specified industries are required to enter data from Form 300A. The deadline moves up to March 2 in 2019 and beyond.

Note that this is a separate requirement from OSHA’s Severe Injury Reporting protocol, which requires employers to report any worker fatality within 8 hours and any amputation, loss of an eye, or hospitalization of a worker within 24 hours to OSHA.

Pro tip: It is possible that the Trump administration will suspend final implementation of the rule. In the meantime, unless and until that happens, affected employers should prepare to comply with the rule on December 1. We will continue to monitor any developments in this area and report any updates.

Kathleen Jennings, Principal is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. She defends employers in sexual harassment and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

©2017 Wimberly Lawson

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Wimberly Lawson and the user or browser. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.

 

Federal Court Adopts Magistrate’s Recommendation That OSHA Inspection Warrant Be Quashed


As we reported in an earlier blog post, a federal magistrate judge recommended that a warrant OSHA sought to conduct a comprehensive inspection of a North Georgia poultry plant be quashed (invalidated). In a follow-up to that post, we are pleased to report that on November 2, 2016, U.S. District Court Judge William C. O’Kelley (a Nixon appointee) of the Northern District of Georgia approved and adopted Magistrate Judge J. Clay Fuller’s August 5, 2016 Report and Recommendation, which found that the warrant should be quashed because OSHA failed to use Constitutional methods to select Mar-Jac for an intensified inspection after it reported an injury. This decision is significant because invalidates OSHA’s Regional Emphasis Program (REP) for Poultry Processing Facilities, announced in October 2015, as the basis for expanding an unprogrammed, incident-related inspection to a comprehensive, or “wall-to-wall,” inspection covering the entire plant.

    In his opinion, Judge O’Kelley examined, and rejected, each of OSHA’s objections to the magistrate judge’s Report and Recommendation. For example, OSHA argued that the REP was a neutral plan, but the judge pointed out that it allowed the Area Director unbridled discretion to select targets, and therefor that the purported neutrality was an illusion. The Area Director’s testimony was liberally cited in support of this conclusion. OSHA’s argument that the REP’s instruction to expand all unprogrammed inspections, subject only to resource allocation considerations, was exposed as a sham, since the Area Director confirmed that he had the resources to conduct at most one or two comprehensive poultry plant inspection per year.

The judge noted that OSHA had many legitimate, neutral criteria at its disposal for selecting candidates for inspection that did not repose all discretion in a single official, and observed that while probable cause sufficient to support criminal prosecution is not required, the Constitution does require reasonable suspicion for an administrative search, and that was wanting here. He also rejected OSHA’s contention that the 300 logs of injury and illness were sufficient probable cause, noting (correctly) that those logs contain information about incidents, but nothing at all about causation. He also noted that Mar-Jac already had undergone an intensive, 4-month-long comprehensive inspection, in 2009.

The district Court’s ruling is important for all employers because it reminds OSHA that it is subject to the limits on search and seizure enshrined in the Fourth Amendment to the U.S. constitution. We are pleased to have been able to put our client’s case before the court, and that the court has approved the Magistrate’s Report and Recommendation to quash the warrant.

Questions? Need more information?

Contact Larry Stine at jls@wimlaw.com or (404) 365-0900.

# # #

©2016 Wimberly Lawson