Employer Law Report

Tag Archives: OSHA

COVID-19 and OSHA: Commonly asked questions

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 a workplace free from known hazards. That includes known exposure to infectious diseases. So, OSHA does expect employers to take reasonable measures to protect workers from workplace exposure to COVID-19, including taking reasonable hygiene and sanitation measures and taking reasonable precautions in the event it …

Does your workplace foster a culture of safety? New OSHA memo relaxes rule on drug testing policies and incentive programs

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.

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

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 …

OSHA delays electronic reporting requirement start date

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.…

New Secretary of Labor sworn in

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 …

OSHA retaliation rules are going forward

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

Hidden anti-retaliation provisions in OSHA’s electronic reporting rule: How are incentive programs and drug testing policies affected?

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 …

OSHA issues final rule requiring electronic submission of workplace illness and injury logs

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 …

OSHA fines to increase almost 80%

For the first time since 1990, the Occupational Safety and Health Administration (OSHA) will increase its fines to reflect inflation. For willful and repeat citations, this will mean an increase in the maximum possible penalty from $70,000 to around $125,000. For serious citations, it will mean an increase in the maximum possible penalty from $7,000 to around $12,600. The Bipartisan Budget Act of 2015, signed into law by President Obama on November 2, allows OSHA a one time “initial adjustment” for inflation and then allows OSHA to adjust for inflation annually after that.

OSHA penalties are calculated from a number …

OSHA modifies rules for reporting of severe injuries and fatalities – updates exemptions from record-keeping requirements

Recently, the federal Occupational Safety and Health Administration (OSHA) announced a final rule changing requirements for reporting severe injuries and fatalities. The rule also modifies OSHA’s exemptions from its record-keeping requirements. The new rule takes effect January 1, 2015.

In most circumstances, there is no obligation to notify OSHA when there is an injury or illness incurred at work. Employers are required to log work-related injuries and illnesses on OSHA forms. OSHA does inspect those logs when they conduct workplace investigations. But, in most cases there is no general obligation to notify OSHA when an employee becomes ill or injured …

OSHA retaliation claims could get new “teeth”

Section 11(c) of the Occupational Safety and Health Act prohibits retaliation against employees who raise safety concerns at work or participate in OSHA enforcement activity. In recent Congressional hearings, Assistant Secretary of Labor, David Michael, proposed substantive and procedural changes for OSHA retaliation claims. If adopted, the changes could pose significant problems for companies defending against these claims.

The most concerning of the changes proposed by Mr. Michael would allow for immediate “preliminary reinstatement” of a terminated employee claiming retaliation. Depending on what standards would ultimately be imposed for obtaining this sort of preliminary relief, employers could be required to …

US DOT Announces Final Rule Banning Texting While Driving by Commercial Motor Vehicle Operators: OSHA Joins In to Battle “Distracted Driving”

On September 21, 2010, the Federal Motor Carrier Safety Administration ("FMCSA"), an agency of the U.S. Department of Transportation, announced a final rule banning commercial vehicle operators from texting messages while driving. An earlier post on this site described the notice of rulemaking. At the September 21st "National Distracted Driving Summit," FMCSA announced that the final rule will be published "soon" and will take effect 30 days after publication.

It is anticipated the final rule will track closely with the rule as originally proposed and will ban "texting," defined broadly to include generating and reading any sort of text message …

Stepped-Up OSHA Enforcement: Severe Violator Enforcement Program (SVEP)

The Obama Administration has advanced various initiatives to strengthen OSHA enforcement efforts. The Severe Violator Enforcement Program (“SVEP”) is a draft OSHA directive expected to take effect in June, 2010. SVEP will replace OSHA’s current Enhanced Enforcement Program. SVEP will direct OSHA enforcement officials to take especially aggressive enforcement steps in four specific circumstances:

The four circumstances that will trigger SVEP enforcement are:

  1. Fatality/Catastrophe

Circumstances involving a fatality or where three or more employees are hospitalized, and where one or more willful, repeat, or failure to abate citations are issued.

  1. High-Emphasis Hazards

Circumstances involving one or more specified high-emphasis hazards …

OSHA Sends Strong Message Under SOX

Publicly traded companies need to remain vigilant to avoid employment-related retaliation against employees who may complain about company violations of accounting controls and possible violations of SEC related rules or regulations. In a whistleblower case under SOX, OSHA recently ordered Tennessee Commerce Bank to reinstate its former chief financial officer and pay him more than $1 million in back wages, interest, attorneys fees and compensatory damages.

Apparently fostering the Obama administration’s push for stricter enforcement of Department of Labor and financial industry regulations, an Assistant Secretary of Labor for OSHA issued this statement about OSHA’s order: “This case clearly shows …

New Consumer Product Safety Whistleblower Law Enacted

On August 14, 2008, President Bush signed into law the Consumer Product Safety Improvement Act of 2008 (CPSIA), which includes, among many extensive changes to consumer safety laws, a whistle-blower provision.

This provision applies to all manufacturers, distributors, retailers and private labelers of children’s toys, children’s products and child care articles, regardless of the number of employees. Under the Act, children’s toys and children’s products are generally defined as being "designed or intended primarily for children 12 years of age or younger."  "Child care articles" are defined as "a consumer product designed or intended by the manufacturer to facilitate sleep …