By Mark A. Lies, II,  Brent I. ClarkAdam R. Young, and Craig B. Simonsen

Seyfarth Synopsis:  OSHA has just issued a Standard Interpretation clarifying the Obama-era guidance that prohibited incentive programs and circumscribed post-incident drug testing;  “Clarification of OSHA’s Position on Workplace Safety Incentive Programs and Post-Incident Drug Testing Under 29 C.F.R. §1904.35(b)(1)(iv).”

We previously blogged about OSHA’s 2016 retaliation regulation and associated guidance, which had explained examples of post-accident drug-testing and safety incentive as instances of unlawful retaliation.  OSHA’s 2016 retaliation rule left employers uncertain about what programs were permissible and whether they would face citations for long-standing safety programs aimed at encouraging safe behaviors and reducing injury rates.

  1. OSHA’s Revised Perspective is Apparent in the New Standard Interpretation

OSHA’s new Standard Interpretation intends to “to clarify the Department’s position that [the rule] does not prohibit workplace safety incentive programs or post-incident drug testing. The Department believes that many employers who implement safety incentive programs and/or conduct post-incident drug testing do so to promote workplace safety and health.”  The Interpretation explains that “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.”

Post-incident drug testing policies and safety incentive programs will be considered retaliatory and unlawful only where they seek “to penalize an employee for reporting a work-related injury or illness rather than for the legitimate purpose of promoting workplace safety and health.”  Properly formulated and lawful post-incident drug testing policies and safety incentive programs will be permitted and will not result in OSHA citations.

  1. OSHA Permits Consistent Post-Incident Drug Testing Policies

For years, OSHA’s position on post-incident drug testing confounded employers, and employers faced complicated questions in the hours following workplace safety incidents.  The Standard Interpretation clarifies that “most instances of workplace drug testing are permissible,” including:

  • “Random drug testing”;
  • “Drug testing unrelated to the reporting of a work-related injury or illness”;
  • “Drug testing under a state workers’ compensation law”;
  • “Drug testing under other federal law, such as a U.S. Department of Transportation rule”; and
  • “Drug testing to evaluate the root cause of a workplace incident that harmed or could have harmed employees.  If the employer chooses to use drug testing to investigate the incident, the employer should test all employees whose conduct could have contributed to the incident, not just employees who reported injuries.”

Accordingly, employers may lawfully implement, random drug testing programs, DOT drug testing programs, drug testing programs under a Collective Bargaining Agreement, and post-incident (also “post-accident”) drug-testing programs.  Post-incident drug testing should be conducted consistently on any employee whose conduct may have contributed to the accident, and not merely the employee who was injured in an accident.  For example, if a forklift operator collides with a pedestrian and injures the pedestrian, both the operator and pedestrian should be drug tested.  OSHA reiterates that employers may not use a post-injury drug testing program, which the Agency views as retaliatory and also exposes employers to worker’s compensation retaliation tort claims.

  1. OSHA Permits Safety Incentive Programs

The Standard Interpretation reverses course on the 2016 retaliation regulation’s prohibition of safety programs.  With limited adjustments, OSHA now permits employers to bring back reporting-based safety programs, which the Standard Interpretation lauds as an “important tool to promote workplace safety and health.”  The Standard Interpretation permits a program which offers a prize or bonus at the end of an injury-free month.  OSHA’s new position thus permits employers to bring back cash bonuses or the much-maligned monthly pizza party.  The Standard Interpretation also permits programs that evaluate managers based on their work unit’s lack of injuries.

However, to lawfully implement such a safety program, the employer must implement “adequate precautions” to ensure that employees feel free to report an injury or illness and are not discouraged from reporting.  According to OSHA, a mere statement that employees are encouraged to report and will not face retaliation is insufficient.  Employers need to undertake their choice of additional “adequate precautions,” 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;” or
  • “A mechanism for accurately evaluating employees’ willingness to report injuries and illnesses.”

The Standard Interpretation thus permits and encourages safety incentive programs that reward employees for identifying unsafe conditions in the workplace.  A second precaution, a brief training on reporting illnesses and injuries, would be simple for employers to conduct and add to onboarding for new hires.  The “mechanism for accurately evaluating employees willingness to report” could be a regularly scheduled, random questionnaire on employee willingness to report injuries and illnesses.  Accordingly, if employers adopt these low-burden precautionary measures, they may bring back or now adopt safety programs that are popular and effective at reducing workplace injury rates.

For related information on drug testing requirements, we had blogged on the recent Department of Transportation (DOT) final rule amending its drug testing program for DOT-regulated employers.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the OSHA Compliance, Enforcement & Litigation TeamLabor & Employment, or the Workplace Policies and Handbooks Teams.

By James L. CurtisPatrick D. Joyce, and  Craig B. Simonsen

Seyfarth Synopsis: OSHA reminded specific employers on Monday that the deadline for electronically submitting their 2017 Form 300A data to OSHA is July 1, 2018.

Electronic submission of 2017 Form 300A data is due by July 1, 2018 for establishments with 250 or more employees that are currently required to keep OSHA injury and illness records, and establishments with 20-249 employees that are classified in specific industries. Form 300As should be submitted using OSHA’s Injury Tracking Application (ITA).

Each establishment’s Form 300A for 2018 will be due March 2, 2019. We will continue to monitor OSHA’s activities relating to this rule. OSHA has indicated that it will be reviewing the rule and will be issuing future guidance or revisions.

Employers operating facilities in state plan states should check with their local state plan office to confirm each individual state’s e-filing requirements. For example, Kentucky OSHA requires e-filing using Federal OSHA’s ITA, while the State of  Washington has indicated that employers with facilities in Washington State are not required to e-file on Federal OSHA’s ITA.

We have previously blogged concerning OSHA’s contentious electronic reporting rules.  See All State Plan Employers are Now Required to Electronically File 2017 Form 300A Data, OSHA Intends to “Reconsider, Revise, or Remove Portions” of Injury and Illness E-Reporting Rule Next Year, OSHA Delays Electronic Filing Date for Injury and Illness Records Until December 1, 2017, and Despite Lawsuit, OSHA Publishes Interpretation for New Workplace Injury and Illness Reporting Rule.

For more information on this or any related topic please contact the author, your Seyfarth attorney, or any member of the Workplace Safety and Health (OSHA/MSHA) Team.

By Brent I. ClarkJames L. Curtis, Benjamin D. Briggs, Mark A. Lies, IIIlana R. Morady, Patrick D. Joyce, and Craig B. Simonsen

Seyfarth Synopsis:  OSHA’s has indicated in a news release that it “will continue accepting 2016 OSHA Form 300A data through the Injury Tracking Application (ITA) until midnight on December 31, 2017.”

Notably, OSHA will not take enforcement action against those who submit their reports after the December 15, 2017, deadline but before December 31, 2017, final entry date. “Starting January 1, 2018, the ITA will no longer accept the 2016 data.”

We had previously blogged on OSHA’s notice that the deadline for submitting 2016 Form 300A for establishments with 250 or more employees (or with 20-249 employees operating in what OSHA deems to be “high-risk industries”) was delayed to December 15, 2017. Also included in the notice delaying the submission deadline to December 15, 2017 was an indication that OSHA “intends to publish a notice of proposed rulemaking to reconsider, revise, or remove portions” of the “Improve Tracking of Workplace Injuries and Illnesses” rule, in 2018.

This stated intent has now been formalized through the Agency’s publication of a rulemaking Agency Agenda item, RIN 1218-AD17 (December 18, 2017).  The item notes that:

OSHA proposes to amend its recordkeeping regulation to remove the requirement to electronically submit to OSHA information form the OSHA Form 300 (Log of Work-Related Injuries and Illnesses) and OSHA Form 301 (Injury and Illness Incident Report) for establishments with 250 or more employees which are required to routinely keep injury and illness records. Under the proposed rule, these establishments would be required to electronically submit only information from the OSHA Form 300A (Summary of Work-Related Injuries and Illnesses). In addition, OSHA seeks comment on the costs and benefits of adding the Employer Identification Number (EIN) to the data collection to increase the likelihood that the Bureau of Labor Statistics (BLS) would be able to match OSHA-collected data to BLS Survey of Occupational Injury and Illness (SOII) data and potentially reduce the burden on employers who are required to report injury and illness data both to OSHA (for the electronic recordkeeping requirement) and to BLS (for SOII).

This may further signal welcome relief from certain requirements strongly opposed by the employer community.

We will continue to monitor OSHA’s activities relating to this rule.

For more information on this or any related topic please contact the author, your Seyfarth attorney, or any member of the Workplace Safety and Health (OSHA/MSHA) Team.

By James L. CurtisDaniel Birnbaum, and Craig B. Simonsen

Seyfarth Synopsis: NIOSH reiterated last week that healthcare workers are exposed to a wide range of hazards on the job and healthcare employers may not be following best practices to protect against these hazards.

Healthcare is the fastest-growing sector of the U.S. economy, employing over 18 million workers, 80% of which are women.  These healthcare workers face numerous hazards on the job, including sharps injuries, exposures to chemicals and hazardous drugs, musculoskeletal disorders (MSDs), latex allergy, violence, and stress.

Significantly, there are more cases of healthcare workers suffering nonfatal occupational injury and illnesses than any other industry sector.  In a recent healthcare study, NIOSH found that as to administering aerosolized pentamidine to patients “22% of respondents did not always wear protective gloves, 69% did not always wear protective gowns, and 49% did not always wear respiratory protection….”  NIOSH concluded that there was “a belief that employers do not fully appreciate the potential adverse health effects associated with exposure to these drugs and therefore do not prioritize adherence.”

As to high-level disinfectants, the survey findings showed that best practices to minimize exposure have not been universally implemented.  NIOSH’s survey found that “17% of respondents said they never received training and, of those who received training, 42% said that it was more than 12 months ago.  19% of respondents said that employer safe handling procedures were unavailable.”  “44% of respondents did not always wear a protective gown and 9% did not always wear protective gloves.”

Critically, NIOSH concluded that employers and employees did not always follow best practices.

For healthcare employers this conclusion should be a red-flag as to the overall quality of their safety and health policies.  Healthcare employers should consult with safety professionals who are well versed in the areas where the employers may be out of touch with best practices.  Such consultations can enhance employee safety and help avoid liabilities associated with OSHA violations.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Workplace Safety and Health (OSHA/MSHA) Team or the Workplace Counseling & Solutions Team.

By Brent I. ClarkJames L. CurtisBenjamin D. BriggsMark A. Lies, IIIlana R. Morady, and Patrick D. Joyce,

Seyfarth Synopsis:  OSHA’s has indicated in a news release that it “intends to publish a notice of proposed rulemaking to reconsider, revise, or remove portions” of the “Improve Tracking of Workplace Injuries and Illnesses” rule, in 2018.

We recently blogged on OSHA’s notice that the deadline for submitting 2016 Form 300A for establishments with 250 or more employees (or with 20-249 employees operating in what OSHA deems to be “high-risk industries”) was delayed to December 15, 2017.

Also included in the notice delaying the submission deadline to December 15, 2017 was an indication that OSHA “intends to publish a notice of proposed rulemaking to reconsider, revise, or remove portions” of the “Improve Tracking of Workplace Injuries and Illnesses” rule, in 2018. This is the first written indication by OSHA of a timeline by which it intends to “reconsider, revise, or remove portions” of the Rule, and may signal welcome relief from certain requirements strongly opposed by the employer community.

We will continue to monitor OSHA’s activities relating to this rule.

For more information on this or any related topic please contact the author, your Seyfarth attorney, or any member of the Workplace Safety and Health (OSHA/MSHA) Team.

By Brent I. ClarkJames L. CurtisBenjamin D. BriggsMark A. Lies, IIIlana R. Morady, and Patrick D. Joyce

Seyfarth Synopsis:  As most employers probably know by now, OSHA’s revised recordkeeping rule requires certain employers to electronically file injury and illness data with OSHA. Originally the reporting deadline was July 1, 2017. OSHA has again extended the deadline, this time to December 15, 2017.

During the previous extension period, it appeared that OSHA might be reconsidering the rule, with a possibility of modifications or a complete revocation of the rule by December 1, 2017. However with the recent extension to December 15, it appears that the rule will remain unchanged for the time being and that covered employers must report by the new deadline.

As a reminder, establishments with 250 or more employees must submit information electronically from their 2016 Form 300A by December 15, 2017. These same employers will be required to submit information from all 2017 forms (300A, 300, and 301) beginning in 2018.

Establishments with 20-249 employees operating in what OSHA deems to be “high-risk industries” (including department stores, nursing homes, construction) must submit information from their 2016 Form 300A by the December 15, 2017 deadline. These same employers will continue to only submit information from their 300A forms in later years.

Although OSHA’s electronic reporting webpage experienced malfunctions earlier this year, the webpage now appears to be working.

For more information on this or any related topic please contact the author, your Seyfarth attorney, or any member of the Workplace Safety and Health (OSHA/MSHA) Team.

By James L. Curtis and Craig B. Simonsen

Seyfarth Synopsis: OSHA has proposed to delay the reporting compliance deadline, until December 1, 2017,  for certain employers to electronically file injury and illness data.

Under OSHA’s revised recordkeeping rules certain employers are required to electronically file injury and illness data with OSHA.  As we noted previously in our blog, the rule became effective in January 1, 2017, and required employers to electronically file that information by July 1, 2017.  However, for months the regulated community had been asking how it would be expected to accomplish this electronic filing when OSHA had failed to set up a website capable of accepting the submissions.

In May 2017 OSHA acknowledged that “OSHA is not accepting electronic submission of injury and illness logs at this time and intends to propose extending the July 1, 2017 date by which certain employers are required to submit the information from their completed 2016 form 300A electronically.”

OSHA has now formally proposed to extend the filing deadline until December 1, 2017.  82 Fed. Reg. 29261 (June 28, 2017).  Importantly, OSHA states that the proposed delay will also allow OSHA an opportunity to “further review and consider the rule.”  Accordingly, it appears that OSHA is reconsidering the entire rule and may even modify or revoke the rule prior to the December 1, 2017 filing date.  OSHA stated that it intends to issue a separate proposal to reconsider, revise, or remove other provisions of the final rule on electronically filing injury and illness data.

For more information on this or any related topic please contact the author, your Seyfarth attorney, or any member of the Workplace Safety and Health (OSHA/MSHA) Team.

By James L. Curtis

iStock_000004162096LargeSeyfarth Synopsis: OSHA has announced that it will be proposing a delay to the July 1, 2017 deadline for certain employers to electronically file injury and illness data.

Under OSHA’s revised recordkeeping rules certain employers are required to electronically file injury and illness data with OSHA.  As we noted previously in our blog, the rule became effective in January, 2017 and required employers to electronically file the information by July 1, 2017.  However, for months the regulated community has been asking how it is expected to accomplish this electronic filing when OSHA has failed to set up a website capable of accepting the submissions.

OSHA has now posted a notice on its website acknowledging that “OSHA is not accepting electronic submission of injury and illness logs at this time and intends to propose extending the July 1, 2017 date by which certain employers are required to submit the information from their completed 2016 form 300A electronically.”

It is unclear how long of a delay OSHA will seek and whether other modifications will be made that would impact the new anti-retaliation provisions.  We will keep readers posted.

For more information on this or any related topic please contact the author, your Seyfarth attorney, or any member of the Workplace Safety and Health (OSHA/MSHA) Team.

By Brent I. Clark, Adam R. Young, and Craig B. Simonsen

shutterstock_171692768Seyfarth Synopsis:  OSHA has recently updated and published its enforcement procedures for occupational exposure to workplace violence.  The procedures explain and lay out the elements of an OSHA General Duty Clause violation, as well as NIOSH’s guidance for determining the potential for workplace violence.

OSHA defines “workplace violence” as an act or threat of physical violence, harassment, intimidation, or other threatening disruptive behavior that occurs at the work site.  It ranges from threats and verbal abuse to physical assaults, or homicide.  It can involve employees, clients, customers, and visitors.  In addition, OSHA asserts that nearly two million American workers report being victims of workplace violence each year.  According to OSHA: “unfortunately, many more cases go unreported.”

To assist the Agency and its Certified Safety and Health Official (CSHO) inspectors in assessing and citing instances of workplace violence, OSHA has recently released its updated Enforcement Procedures and Scheduling for Occupational Exposure to Workplace Violence, OSHA Directive CPL 02-01-058 (January 10, 2017).  The Directive was last updated in 2011.

The Directive lays out the elements of a General Duty Clause violation, including:

  • The employer failed to keep the workplace free of a hazard to which employees of that employer were exposed;
  • The hazard was recognized;
  • The hazard was causing or was likely to cause death or serious physical harm; and
  • There was a feasible and useful method to correct the hazard.

The Directive also lists “known risk factors”, which “shall be considered in determining whether to inspect a worksite, [but which] none of them would individually trigger an inspection.”  The risk factors are: contact with the public; exchange of money; delivery of passengers, goods, or services; having a mobile workplace such as a taxicab; working with persons in healthcare, social service, or criminal justice settings; working alone or in small numbers; working late at night or during early morning hours; working in high-crime areas; guarding valuable property or possessions; working in community-based settings, such as drug rehabilitation centers and group homes.

How Can Workplace Violence Hazards be Reduced?

OSHA indicates that “in most workplaces where risk factors can be identified,” the risk of assault can be prevented or minimized if employers take appropriate precautions.  It suggests that one of the best protections is a zero-tolerance policy toward workplace violence.  The policy, OSHA advises, should cover all workers, patients, clients, visitors, contractors, and anyone else who may come in contact with company personnel.

By assessing worksites, employers can identify methods for reducing the likelihood of incidents occurring.  “OSHA believes that a well-written and implemented workplace violence prevention program, combined with engineering controls, administrative controls and training can reduce the incidence of workplace violence in both the private sector and federal workplaces.”

Employers seeking to address this topic in the company’s employee handbook or policy documents should do so carefully, as in the event of an incident, this will be one of the first company documents requested and received by an inspector.

On the enforcement side, we note that OSHA continues to issue citations under the General Duty Clause for alleged workplace violence hazards.  However, all of these citations follow one or more actual instances of violence at work.  OSHA appears to be unable to gather sufficient facts during an inspection to support a citation in advance of an actual instance of workplace violence — even though OSHA’s citations allege the employer should have addressed the hazard in advance.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Workplace Safety and Health (OSHA/MSHA) Team or the Workplace Counseling & Solutions Team.

By Brent I. Clark, James L. CurtisAdam R. Young, and Craig B. Simonsen

iStock_000004162096LargeSeyfarth Synopsis: A Texas federal court won’t decide the legality of OSHA’s rule regarding the “Tracking of Workplace Injuries and Illnesses” until after the July 1, 2017 deadline for employers to comply with the rule.

A Texas federal court won’t decide the legality of OSHA’s rule regarding the Tracking of Workplace Injuries and Illnesses81 Fed. Reg. 29624 (May 12, 2016) until after the July 1, 2017 deadline for employers to comply with the rule, according to an April 3, 2017 judge’s order.  The order gives attorneys from the Department of Labor and several employer groups challenging the rule until July 5, 2017 to submit a proposed summary judgment briefing schedule (TEXO ABC/AGC v. Perez, N.D. Tex., No. 16-1998).

We had blogged previously about OSHA’s new rule on electronic reporting, drug-testing, retaliation claims, and safety incentive programs.  The TEXO lawsuit seeks a declaratory judgment finding that the rule is unlawful to the extent that it prohibits or otherwise imposes limits on incident-based employer safety incentive programs and routine mandatory post-accident drug testing programs. The plaintiffs allege that the challenged provisions are unlawful and must be vacated because they exceed OSHA’s statutory authority, and because the “underlying findings and conclusions are arbitrary, capricious, an abuse of discretion, and otherwise not in accordance with law.”

Business organizations and other industry groups have also sued OSHA in Oklahoma federal court to prevent the implementation of the new injury and illness electronic reporting rule, arguing that OSHA’s proposed online database violates employers’ First and Fifth Amendment rights, is arbitrary, capricious, and otherwise contrary to law, and oversteps OSHA’s authority.  National Association of Home Builders of the United States et al. v. Perez et al., No. 5:17-cv-00009 (W.D. Okla. Jan. 4, 2017).

While it remains to be seen how either of these legal challenges will fare, the business community has shown a willingness to strongly oppose this new rule — a rule that has been widely criticized as emblematic of regulatory overreach.  However, as the rule remains on the books, employers are required to comply with the July 1 electronic reporting deadline, or face the risk of citations and penalties.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Workplace Safety and Health (OSHA/MSHA) Team.