osha’ presented by: s “i t w manesh k. rath orkplace ... 5 30 osha 3030 slides (00… · title:...

Presented by:

Manesh K. RathPartner

rath@khlaw.com

David G. SarvadiPartner

sarvadi@khlaw.com

THREE UPDATES ON OSHA’S“IMPROVE TRACKING OF WORKPLACE

INJURIES AND ILLNESSES” RULE

Copyright © 2018

May 30, 20181001 G Street NW, Ste. 500 W,

Washington, D.C.

www.khlaw.com

Please Don’t Forget to Dial-In:Conferencing Number: (800) 768-2983

Access Code: 434 4318(View the slides via webinar, and the sound via phone, above)

An audio recording and slide deck will be provided post-webinar on www.khlaw.com/osha3030

Copyright © 2018 www.khlaw.com

3Copyright © 2018

MANESH K. RATHManesh Rath is a partner in Keller and Heckman’s litigation and OSHA practice groups. He has been the lead amicus counsel on several cases before the U.S. Supreme Court including Staub v. Proctor Hospital and Vance v. Ball State University.

Mr. Rath is a co-author of three books in the fields of wage/hour law, labor and employment law, and OSHA law. He has been quoted or interviewed in The Wall Street Journal, Bloomberg, Smart Money magazine, Entrepreneur magazine, on "PBS's Nightly Business Report," and C-SPAN.

Mr. Rath currently serves on the Board of Advisors for the National Federation of Independent Business (NFIB) Small Business Legal Center. He served on the Society For Human Resources (SHRM) Special Expertise Panel for Safety and Health law for several years.

He was voted by readers to Smart CEO Magazine's Readers' Choice List of Legal Elite; by fellow members to The Best Lawyers in America 2016, 2017 and 2018; selected by Super Lawyers 2016 – 2017, 2017 – 2018; and by corporate counsel as the 2017 Lexology winner of the Client Choice Award.

Manesh RathPartner

rath@khlaw.com202-434-4182

4Copyright © 2018

He has a background in occupational safety and health, having worked as an industrial hygienist for more than 15 years and became a Certified Industrial Hygienist in 1978, a designation he held until he voluntarily relinquished it in 2010. Prior to becoming an attorney, he managed a corporate industrial hygiene program for a Fortune 500 company. Mr. Sarvadi was selected by the National Academy of Sciences to participate in a panel of the Institute of Medicine that was asked to review a NIOSH study on the use of respirators. He was asked to participate because of his expertise in law and industrial hygiene.

DAVID G. SARVADIMr. Sarvadi practices in the areas of occupational health and safety, toxic substance management, pesticide regulation, and product safety.

Mr. Sarvadi represents clients before a variety of federal and state enforcement agencies in legal proceedings involving OSHA citations, EPA Notice of Violations, TSCA consent orders, CPSC Notices, FIFRA Stop Sale Use and Removal Orders, and EEOC Charges of Discrimination. He works with clients in developing, reviewing, and auditing compliance programs in all of these areas, and in obtaining agency rulings on proposed or novel activities and questions, seeking interpretations of regulations as they apply to specific sets of facts. He has been counsel to the National Coalition on Ergonomics from its inception.

David SarvadiPartner

sarvadi@khlaw.com202-434-4249

5Copyright © 2018

View the entire library of priorOSHA 30/30s here:

www.khlaw.com/OSHA3030

6Copyright © 2018

Overview of OSHA’s injury and illness electronic reporting rule promulgated in 2016.

Discussion of recent OSHA enforcement memorandum.

Analysis of application of rule in state-plan states.

Review of OSHA Spring 2018 regulatory agenda relating to recordkeeping.

What employers should do.

TOPICS TO BE DISCUSSED

7Copyright © 2018

May 12, 2016: OSHA issues “Improve Tracking of Workplace Injuries and Illnesses” Final Rule

Employers required to submit information from injury and illness records to OSHA electronically• Excludes certain confidential employee information

OSHA to publish data on public website Previous OSHA 30/30 presentations on recordkeeping and reporting:

– Oct. 25, 2017: https://www.khlaw.com/OSHA-3030-October-25-2017– Dec. 7, 2016: https://www.khlaw.com/OSHA-3030-December-7-2016– May 17, 2016: https://www.khlaw.com/OSHA-3030-May-17-2016– Aug. 26, 2015: https://www.khlaw.com/OSHA-3030-August-26-2015– Feb. 25, 2015: https://www.khlaw.com/OSHA-3030----February-2015– Sept. 24, 2014: https://www.khlaw.com/OSHA-3030----September-24-2014

OVERVIEW OF FINAL RULE

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Establishments with 250 or more employees at any time during year in covered industries Electronically submit Form 300A info annually.

• Deadline to submit info from 2016 Form 300A: Dec. 31, 2017.

• Deadline to submit info from 2017 Form 300A: July 1, 2018.

• Annual deadline beginning 2019 and every year after: March 2.

Electronically submit information from Forms 300 and 301 annually (*subject to change).• Deadline to submit info from 2017 Forms 300 and 301: July 1, 2018.

• Annual deadline beginning in 2019 and every year after: March 2.

OVERVIEW OF FINAL RULE

9Copyright © 2018

Establishments with 20-249 employees at any time during year in covered “high hazard” industries

Electronically submit Form 300A info annually.

• Deadline to submit info from 2016 Form 300A: Dec. 31, 2017.

• Deadline to submit info from 2017 Form 300A: July 1, 2018.

• Deadline beginning 2019 and every year after: March 2.

Only applies to “high hazard” industries

OVERVIEW OF FINAL RULE

10Copyright © 2018

Employers upload injury and illness data

System stopped accepting 2016 data after Dec. 31, 2017

More than 214,000 submissions sent in 2016

• Information from Form 300A

More than one-third of workplaces failed to submit reports

• OSHA expected 350,000 submissions

INJURY TRACKING APPLICATION

11Copyright © 2018

Feb. 21, 2018: OSHA issued a memorandum to regional administrators

Interim enforcement procedures for failure to submit electronic and injury records

Citation for recordkeeping related violations: Other Than Serious violation

CSHOs refer to ITA database to identify employers that were required to submit records but failed to do so

UPDATE 1: OSHA MEMORANDUM

12Copyright © 2018

CSHO will not cite employer for failing to submit if:

• Employer says it attempted to submit its records electronically but was unable to do so, AND;

• Employer verifies this with documentation

– Correspondence with OSHA Help Desk, an OSHA National, Regional or Area Office, or by using other OSHA contact means (such as email)

Area Directors may direct CSHOs to perform full recordkeeping audit where there is evidence of potential systemic recordkeeping issues

UPDATE 1: OSHA MEMORANDUM

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If employer failed to submit but immediately abates during the inspection by providing a paper copy of records:• Other Than Serious citation with no penalty

If employer failed to submit 2016 data but shows it already submitted its 2017 data:• Other Than Serious citation with no penalty

If employer does not produce the records:• Other Than Serious citation will be issued with the appropriate

penalty

• OTS citation: Can be high as $12,934

UPDATE 1: OSHA MEMORANDUM

14Copyright © 2018

April 30, 2018: OSHA “fixes error” from Final Rule

Section 18(c)(7) of Act requires all affected employers to submit injury and illness data to ITA even if employer is covered by State Plan that has not completed adoption of their own state rule

OSHA notified State Plan states that all covered employers must provide 300A data for 2017

Caveat: OSHA cannot enforce this

UPDATE 2: OSHA NOTIFICATION TO STATE-PLAN STATES

15Copyright © 2018

OSHA has announced plans to roll back rule

• Reg agenda: NPRM to be released July 2018

• Eliminate requirement that employers with 250 or more employees must electronically submit 300 logs of work-related injuries and illnesses and 301 injury and illness incident reports

• Won’t publish data on public website

– Unable to ensure that personally-identifiable information will be protected

• ITA not accepting OSHA 300 logs and 301 forms at this time

UPDATE 3: PROPOSED RULE COMING

16Copyright © 2018

Keep records of electronic submissions to ITA (or attempts to submit)• Print confirmation pages; screen shots

• Document efforts to comply with rule

If have issues reporting, reach out to OSHA and keep communications

Check to see if your state has adopted rule

Look out for proposed revised rule from OSHA

Practice greater care in determining recordability

Conduct annual audits

WHAT EMPLOYERS SHOULD DO

17Copyright © 2018

MORE FROM THE OSHA 30/30:

Listen as a Podcast:The OSHA 30/30 is now available as a Podcast!Find it at:• Khlaw.com/osha3030• Or on any podcast streaming service (iTunes,

Podcast Addict)

Catch Manesh Rath on Twitter:

@RathManesh

Connect with us on LinkedIn:1. Manesh Rath, David Sarvadi, Larry

Halprin, Javaneh Nekoomaram2. Keller and Heckman Workplace

Safety and Health

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Please join usat 1:00 PM Eastern U.S.

Wednesday, June 20, 2018www.khlaw.com/OSHA3030

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David SarvadiPartner

sarvadi@khlaw.com202-434-4249

Manesh RathPartner

rath@khlaw.com202-434-4182

Thank you!

Keller and Heckman LLP1001 G Street NW

Suite 500 WestWashington, DC 20001

(202) 434-4182rath@khlaw.com

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