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OSHA’s Proposed Rule Creates Enforcement Blueprint




by:
Daniel R. Flynn
Leech Tishman - Lisle Office

 
November 28, 2013

Previously published on November 25, 2013

2013 has seen OSHA continue to ramp up its enforcement efforts in order to bring the regulated community into compliance with the hundreds of workplace safety and health standards. OSHA’s proposed amendment to the recordkeeping standard is the latest in a series of efforts to shift the focus of the Agency to enforcement.

Proposed Changes to the Recordkeeping Standard

On November 8, 2013, OSHA published a proposed rule that would significantly change employers’ injury reporting obligations. Currently, employers must only report “the death of any employee from a work-related incident or the in-patient hospitalization of three or more employees as a result of a work-related incident.” In addition to these reports, OSHA currently only obtains specific information in an employer’s 300 log and 301 forms during an inspection in which compliance officers can (and will) request these documents. The proposed rule breaks employers into two categories based on establishment (facility) size. Each category potentially faces the following additional reporting requirements:

  • Establishments that had 250 or more employees (including full-time, part-time, temporary, and seasonal workers) at any time during the previous calendar year would have the most onerous obligations. Under the proposed rule, all such employers would be required to electronically submit all 300 and 301 information to OSHA on a quarterly basis. These employers would also have to submit the annual summary information (the information on the 300A form) once each year.

  • Establishments that had 20 or more employees at any time during the previous calendar year and that fall under one of the listed North American Industry Classification System (NAICS) codes would have to submit only the annual summary information once each year. All of the manufacturing NAICS codes (31-33), which include commercial printing, are listed.

Potential Impact on Industry

OSHA describes the proposed rule as enabling “employers, employees, employee representatives, the government, and researchers [to] be better able to identify and remove workplace hazards.” OSHA’s method for identifying and removing workplace hazards, of course, is through inspections and citations. The proposed rule could result in OSHA taking issue directly with the information provided, especially in the gray areas of the recordkeeping standards. For example, when filling out an entry on the 300 log, the standard only requires employers to “enter a one or two line description for each recordable injury or illness.” OSHA’s guidance adds only a bit of clarity by stating that, “When the required records are kept but have not been completed with the detail required by the regulation, or the records contain minor inaccuracies, the records will be reviewed to determine if there are deficiencies that materially impair the understandability of the nature of hazards, injuries and illnesses in the workplace. If the defects in the records materially impair the understandability of the nature of the hazards, injuries and/or illnesses at the workplace, an other-than-serious citation will normally be issued.” OSHA Directive: Recordkeeping Policies and Procedures Manual, CPL 02-00-135 (Dec. 30, 2004). The initial determination of whether a description contains deficiencies as well as the secondary determination of whether the deficiencies materially impair the understandability of the nature of the hazards, injuries, and illnesses in the workplace leave significant room for varying opinions. Where a compliance officer’s opinion differs from the employer’s, citations are often issued. Under the proposed standard, OSHA could cite employers for failing to provide all of the information required by Part 1904 even where the employer believes the information to be sufficient under the standard. Employers would have defenses to the citation, but would nonetheless be forced to spend time and resources asserting such defenses.

The proposed rule could not only provide OSHA with information on which to base recordkeeping citations, but it could also provide OSHA with the justification to initiate an inspection and issue citations. For example, if a facility has multiple accidents related to amputation hazards during a single reporting period, OSHA could initiate an inspection under the National Emphasis Program. The compliance officer would critically examine the areas of the machine that were involved in the accidents. If those areas have not been guarded or lockout/tagout procedures have not been implemented, it is certainly foreseeable that a compliance officer would issue a citation. Because the reporting requirement is quarterly, however, OSHA would be within the six-month statute of limitations to base a citation on the accident itself even if guards have been put in place or procedures have been developed. Employers would, of course, have potential defenses to the citation (e.g., it was not reasonably predictable that the employee would enter the zone of danger, the activity being performed fell under the minor servicing exception, or the violative conduct constituted employee misconduct). In these situations, employers would once again be forced to spend time and resources asserting such defenses.

For employers with more than 20 but fewer than 250 employees, the implications are not as significant. Nonetheless, even providing the 300A information on an annual basis could still trigger workplace inspections as discussed above.

Lastly, OSHA is proposing to make the information submitted under the proposed rule available to the public on its website. This follows a series of policies designed by OSHA to shame employers. In a November 2010 conference, Dr. Michaels stated that, “We will continue to practice ‘regulation by shaming,’ sometimes less provocatively called ‘regulation by disclosure,’ by issuing news releases that name employers, expose their failings, and detail the serious hazards uncovered in our inspections.” This came on the heels of the Severe Violator Enforcement Program, under which OSHA makes a log of “severe violators” publically available. If the proposed rule is adopted, then employers will have to be mindful of the potential reputational damage and negative business consequences of OSHA making the Part 1904 information publically available.

Potential Response to the Proposed Rule

Employers currently have until February 6, 2014 to comment on the proposed rule. Instructions for submitting comments are contained in the proposed rule, which is available here. Employers can submit comments directly or work with trade associations to comment on the proposed rule. Regardless of whether the rule is adopted, employers should ensure that their current recordkeeping procedures collect all necessary information under the standard. Additionally, the proposed rule emphasizes the importance of having a thorough accident response and investigation process in place.



 

The views expressed in this document are solely the views of the author and not Martindale-Hubbell. This document is intended for informational purposes only and is not legal advice or a substitute for consultation with a licensed legal professional in a particular case or circumstance.
 

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