The federal Occupational Safety and Health Administration (OSHA) has been criticized by some for its response to the COVID-19 pandemic. Some labor unions and other interest groups have been vocal about what they perceive as insufficient action by OSHA to address COVID-19-related workplace hazards. The most recent criticism has come from within the federal government.

Continue Reading If the bear is poked, best to be prepared: OSHA and the pandemic

Below are answers to three common questions about COVID-19 and employer obligations under the federal Occupational Safety and Health Act (OSHA):

Is there any OSHA standard or regulation that covers workplace exposure to COVID-19?

No. OSHA standard applies specifically to workplace exposure to COVID-19. However, the OSHA General Duty Clause requires all employers to provide

In 2016 we reported on OSHA’s anti-retaliation rule related to the reporting of illnesses and injuries. The rule prohibited employer retaliation against employees reporting workplace injuries and illnesses, and implementation of policies that discourage accurate reporting. At the time the rule was finalized, OSHA clearly indicated it would be interpreted strictly and would affect employer incentive programs and post-accident drug testing policies.

On Oct. 11, 2018, OSHA published a memorandum changing its position, taking a significantly more relaxed approach on this anti-retaliation rule. OSHA states that it “does not prohibit workplace safety incentive programs or post-incident drug testing.
Continue Reading Does your workplace foster a culture of safety? New OSHA memo relaxes rule on drug testing policies and incentive programs

The compliance deadline for Occupational Safety and Health Administration’s (OSHA) electronic injury and illness reporting rule has come and gone, and there is no mechanism in place for employers to electronically report work-related injuries and illnesses. On June 27, 2017, OSHA proposed moving the July 1, 2017 mandatory compliance deadline to Dec. 1, 2017. The window for public comment on the proposed delay closed on July 13th. At present, the “proposed delay” remains a “proposal,” but, even so, OSHA does not yet have the mechanism in place for compliance with the electronic reporting requirement.

For many years, OSHA required employers with 10 or more employees to keep a log of employees’ work-related injuries and illnesses, but most employers were not required to routinely submit them to OSHA. Only certain high-risk industries, such as construction, manufacturing and agriculture, were required to submit their records to OSHA by mail. In 2013, OSHA decided to move to an electronic reporting system and increase the number of employers required to submit their illness and injury logs to OSHA. Had the rule taken effect, establishments with 250 or more employees would have been required to submit their 2016 Form 300A by July 1, 2017. These same employers would have been required to submit all of their 2017 forms (300A, 300 and 301) by July 1, 2018. Smaller employers with 20-249 employees in moderate-risk industries, such as waste collection, residential care facilities and retail sales, would have been required to submit only the 300A on an annual basis beginning on July 1, 2017.


Continue Reading OSHA proposes delay to electronic injury reporting requirement and no mechanism in place on OSHA’s website for electronic reporting compliance

The Occupational Safety and Health Administration (OSHA) announced recently that it intends to delay the initial deadline for compliance with its rule requiring employers to report accident and illness records to OSHA electronically. Under the original deadline, employers with over 250 workers and smaller employers in high hazard industries would have been required to begin electronic filing of certain OSHA-required forms on July 1, 2017. For a more detailed discussion of the electronic recordkeeping rule, go here. That deadline is now off and OSHA has promised a formal notification in the future with more information about revised deadlines.

Continue Reading OSHA delays electronic reporting requirement start date

Much has been written recently about the first 100 days of the Trump Administration. Some would argue that little of significance has changed in the employment regulation world. But, the confirmation on April 27, 2017 of new Secretary of Labor R. Alexander Acosta squeaked through the door just before the first 100 days concluded and it could be an initial step towards the sort of employment regulation reform that many in the business community have been expecting.

Secretary Acosta will lead the Department of Labor (DOL), the cabinet department responsible for, among other agencies, the federal Wage and Hour Division (WHD), Occupational Safety and Health Administration (OSHA) and the Office of Federal Contract Compliance Programs (OFCCP). The WHD regulates minimum wage and overtime compliance, including the related exemptions and FMLA compliance. Of course OSHA regulates workplace safety and the OFCCP enforces affirmative action requirements for federal contractors and subcontractors. Clearly, Secretary Acosta will have an opportunity to impact significant areas of employment regulation, though the specific impact remains to be seen. The new Secretary’s early public remarks understandably have been general and focused on broadly-stated objectives to preserve and return jobs. But will the path to that aim include significant changes in existing and proposed employment regulations?
Continue Reading New Secretary of Labor sworn in

On Monday, a federal judge in Texas refused to issue an injunction stopping OSHA from enforcing certain aspects of controversial “non-retaliation” rules. We reported on the proposed OSHA rules on Oct. 27, 2016. Briefly, the most controversial aspects of the rule are on two points:

  1. The rule would effectively prohibit incentive programs under which bonuses or other rewards are conditioned, at least in part, on the frequency of reported injuries. OSHA says that programs like that are a disincentive to reporting injuries.
  2. OSHA takes the position that drug testing programs that call for drug or alcohol testing automatically after an accident are improper. Instead, OSHA says that to be proper post-accident drug testing must be limited to circumstances where the facts at least suggest the possibility that alcohol or drug abuse played a part.

These two provisions had employers scrambling to review incentive and drug testing programs, and evaluating whether to make changes. Then a number of business interest groups filed a lawsuit in federal court in Texas seeking an injunction to stop these aspects of the rule form being enforced.
Continue Reading OSHA retaliation rules are going forward

On Oct. 11, 2018, OSHA published a memorandum changing its position, taking a significantly more relaxed approach on this anti-retaliation rule. Jourdan Day explains what this means here. 

In May 2016, we told you about OSHA’s final rule requiring electronic reporting of illnesses and injuries. This rule requires electronic submission of your OSHA logs, and the information provided will be posted on OSHA’s website. However, in the comments about the new reporting rules OSHA addresses anti-retaliation as it relates to the reporting of illnesses and injuries. The anti-retaliation regulations were originally scheduled to take effect Aug. 10, 2016 and later pushed back to Nov. 1, 2016. A lawsuit has been filed in the Northern District of Texas that could result in the anti-retaliation rules being delayed further or struck down. As a result of this lawsuit, OSHA has again postponed the effective date of the anti-retaliation provisions, which are now set to be effective Dec. 1, 2016. It is likely the court in Texas will act during November on the case. We will follow this lawsuit closely and report any developments or further delays. Importantly, although the lawsuit challenges certain aspects of OSHA’s interpretations of the retaliation aspects of the law, it does not have any impact on the electronic recordkeeping effective dates as we reported them in May.
Continue Reading Hidden anti-retaliation provisions in OSHA’s electronic reporting rule: How are incentive programs and drug testing policies affected?

On May 11, 2016, OSHA issued a final rule requiring electronic reporting of illnesses and injuries. The new rules apply to establishments with 250 or more employees. The rules require electronic submission of the 2016 OSHA form 300A summary report by July 1, 2017, and the 2017 300 log, 300A summary and 301 incident report for 2017 by July 1, 2018. In each subsequent year, all reports for every establishment must be submitted by March 2 of the following year. The new rules also require employers in high-risk industries (construction, manufacturing, furniture stores, waste collection and nursing care facilities) with 20-249 employees to electronically submit their 300A summary. OSHA has stated that no exceptions will be granted to employers who file the required reports in paper format. The information electronically submitted by employers will then be posted on OSHA’s website. OSHA has stated that it will post establishment-specific data but not post any data that would identify any employee. However, in major injury incidents (especially those where there is publicity), it would not be difficult to determine the identity of the employee(s).

OSHA has stated that it believes that publishing the data will encourage safer workplaces. In addition, OSHA has said that it intends to use the data to determine the employers and industries on which to focus its enforcement efforts.

This is a major change from the current injury and illness recording requirements. Presently, employers are required to maintain the 300 logs, 301 incident reports and 300A annual summary and to post the 300A summary in the workplace each year. There is no requirement to submit the records to OSHA. Generally, OSHA only reviews them in the event of an onsite inspection. The only current obligation to report to OSHA is the requirement to report fatalities, amputations, hospitalizations or the loss of an eye.
Continue Reading OSHA issues final rule requiring electronic submission of workplace illness and injury logs