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OSHA Hot Topics

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OSHA Hot Topics

The DOL’s 2022 budget and the Biden Administration’s proposed budget for the Occupational Safety and Health Administration in 2023 seeks funding to hire significantly more OSHA inspectors.  In addition, Doug Parker was sworn in as Assistant Secretary of Labor for OSHA on November 3, 2021, and based on his prior role as chief of California’s Division of Occupational Safety and Health, employers should expect increased rulemaking and more aggressive enforcement activities in the coming years. You will hear from a former OSHA trial attorney as he discusses OSHA hot topics and future agenda items.  These issues include an update on OSHA’s COVID-19 guidance for general industry and the status of OSHA’s health care permanent COVID rule.  Other areas will include discussion of OSHA’s heat stress enforcement and rulemaking; reviewing highly targeted inspection industries; identifying the most common OSHA citations in 2021; workplace violence; proposed changes to the electronic recordkeeping rule; review of recent OSHA standard interpretation letters on recording injuries; overview of the new hazard communication final rule and other expected rulemaking proposals.

Presenters

John Ho
Co-Chair, OSHA-Workplace Safety Practice
Cozen O'Connor

Transcript

John Ho - Hi, everyone. And thanks for joining me today for OSHA Hot Topics. My name is John Ho. I'm a partner at Cozen O'Connor, where I co-chair OSHA's Cozen's OSHA workplace safety practice. Special thank you for Quimbee for having me back to present on hot topics for OSHA. Obviously OSHA's been a very busy agency for the last couple of years through COVID, but certainly that is not the only topic OSHA has been busy on, and we're gonna try to cover many of those timely topics. And it's gonna seem like we're bouncing around a little bit, I apologize for that. But again, and this is not a deep dive into any of these topics, but just to get an oversight on what OSHA's doing these days.

So without further ado, let's move into it. So, the first thing that I want to talk about is what makes the world go around. Which is money, right? So, in terms of money, the Consolidated Appropriations Act was signed by President Biden in March of 2022, which of course is the budget. So, in terms of the budget, this year OSHA's total budget is approximately 612 million for fiscal year 2022. Just as a point of comparison OSHA's budget for fiscal year 2021 was 591.8 million. So, it's certainly an increase. An increase we expected. I would note that it's still significantly short of what the administration had previously sought in its initial appropriations request, which was submitted in May of last year. In that initial request, they were looking for 664.6 million. So, a little bit shy 665 million. So, although it's short, there is still real money and a real increase for OSHA's budget, which I don't think surprises a lot of us, given again, how much OSHA's been in the news the last couple of years and what it's doing in the COVID front, certainly highlighted its role in workplace safety.

Out of its budget, approximately 7.3 million is slated for enforcement. So, I think that's a pretty big chunk of cash. That's gonna be headed directly for the front lines, if you will. And I think all of us did expect when President Biden took office, that he would continue to emphasize a strong enforcement presence for OSHA. So, I think as this money starts to get distributed, we will see more hires and more aggressive enforcement on the day to day ends. Again in COVID and other areas that we're gonna talk about. Before we leave the money situation. Let's talk about the future and the request for 2023 money. So, in March of this year, the Biden administration requested a proposed OSHA budget for fiscal year 2023 of 701.4 million. And again, that's up from the 612 that we just talked about that was budgeted for OSHA for this year. For its request in 2023, half the funds are earmarked for enforcement. Again, consistent with what we're seeing with, that number continue to get increased. Almost 50 million would go into direct enforcement. That money's approximately funding to hire 179 CSHOs. And if you hear that, that means compliance safety health officers, which I refer to as CSHOs throughout this presentation. And again, those are the frontline investigators that are out there doing the complaint inspections, doing the unprogrammed and targeted inspections, then show up at the workplace and knock, show their credentials and do the full-fledged investigation.

Again, when we talked about President Biden's campaign, and again, he promised to double the number of OSHA inspectors during his term. So, and this money is consistent with what the president wanted to do coming into his administration and continues to want to emphasize that frontline investigation process for OSHA. In addition to just hiring CSHOs, generally speaking the budget also seeks to create a number of specialized positions. And as we all know, OSHA's in charged with a full set of enforcement over some very highly technical areas. And some of these highly technical inspection areas include process, safety management, electrical safety, ergonomic hazards, combustible dust, biohazards, and infectious diseases. And obviously, some CSHOs have more experience than others, but here they're trying to emphasize. And I think OSHA appreciates that for some of these very specialized areas, more training is required by the frontline inspectors, so they can truly understand the industry that they're in. And so this money will be targeted for that. And I think that for the most part is a welcome initiative for businesses that are in these industries, so they don't really have to explain things from the start to catch these CSHOs up to speed. So, that being said, again in this partisan world that we live in. A senior ranking member of the Chamber's energy panel, who is a Republican from New York, called the budget proposal dead on arrival. And given the amount of money the president is asking for, I guess that's not really gonna surprise anybody, but I guess we'll just have to keep our eye on the budget process for next year and see what OSHA eventually does end up with.

So, the next area it's always worth talking about in terms of what OSHA's gonna do, what OSHA plans on doing is discussing the leadership, right? Because of course the top policy makers who are gonna set the directions for OSHA and the areas that that leadership wants to concentrate in. So, with that in mind, Doug Parker, who is now the assistant secretary of labor for OSHA, OSHA's head honcho, so to speak was sworn in November 3rd, 2001. Doug Parker is the first Senate confirmed leader in nearly five years with OSHA. So, it's been quite a while since OSHA's had a top person running and leading the organization, which again gives a little bit more insight of what we can expect from OSHA. So, we look at Doug Parker's, before he joined OSHA, he was the chief of Cal/OSHA. And I'm sure many of you are familiar with Cal/OSHA. It is California has opted to have a state plan as approximately 22 U.S. states and territories have, which means they run their own safety and health agency, as long as their rules and regulations are at least as protective as OSHAs, then they get certified by OSHA to give them authority to do that. Cal/OSHA is one of those states that has done that. And historically has been very progressive in its workplace safety policies, setting regulations and rule makings that often go above OSHA's requirements. So, with that in mind, I think it's fair to say that we can expect Doug Parker to continue aggressively in terms of rule making and frontline enforcement. And as we're gonna talk about, I think we've seen that bare fruit already in terms of the rule making what OSHA has been doing and has announced that it will do in the future. Doug Parker was also the deputy assistant secretary for Policy at USDOL at MSHA, which is Mine Safety and Health Administration. So, clearly he has the federal background as well. And you just, again, even Google Doug Parker, I think most of us will agree he's very committed to supporting organized labor. And again, in his time at Cal/OSHA would lead us to believe that he's going to continue a strong enforcement effort and in rule making in many areas that we are going to discuss. Now, let's talk briefly about the Occupational Safety and Health Review Commission on the more legal end of these OSHA discussions and OSHRC as it's often referred to is the appellate body, if you will, that oversees and reviews judges administrative law decisions, administrative law judges decisions. So, if an employer contest an OSHA citation, it goes into litigation before OSHRC. And that contest, that case is heard before an ALJ. And after the AGA renders a decision, then that review is done by OSHRC.

In its full compliment, OSHRC is composed of three commissioners. One who is the chair. Currently, there are only two active commissioners, Cynthia Attwood, who is the current chair and is a Democratic nominee, and Amanda Wood Laihow who is a Republican nominee. So, we've got two current commissioners. On September 24th of last year, President Biden did nominate Susan Harthill, who's the co-founder of Morgan Lewis Workplace Government Relations and Regulation practice group to serve as the third commissioner, as we all certainly know the Senate has been busy with other combinations before it, so it's anybody's guess right now when Susan Harthill's nomination will hit the Senate floor. But if and when that happens, we will then have a full compliment of our three commissioners. And of course they're whether they're Republican or Democratic nominations, gives us a guess into how they're gonna view some of these decisions that are gonna come before it. Another issue I wanted to talk about because it again is new is a recent announcement from the Justice Department and the Department of Labor on joint collaboration, on March 7th the attorney general announced that DOJ will be increasingly pursuing cases in regard to worker safety and safe working conditions through a formal collaboration with the Department of Labor, including OSHA, which of course is a significant part of DOL's enforcement in this area. And the AG said that DOJ is deepening its partnership with the Department of Labor to sharpen the tools that it's disposable to protect American workers.

Again, it's pretty well known that the Biden's administration government-wide campaign to promote unionization of the American workplace is been very visible. So, certainly we expect potentially some support in that area as part of this collaboration. And as evidence of that on March 8th, the Department of Justice announced a guilty plea by an oilfield manager regarding a felony charge of obstructing an OSHA proceeding, which stemmed from a 2014 fatality of one of its workers. So, you know, we'll see I guess history, only time will tell, so to speak if and how aggressive the Department of Justice will be in working with DOL on criminal prosecutions of health and safety. Whether this March 8th guilty plea is an anomaly or a more routine practice that we're gonna see. We'll have to keep our eye on.

It is also worth noting that although criminal proceedings under OSHA, it's not unheard of, it's certainly not common. You also have to be aware that state district attorney's offices have their own authority to pursue criminal cases outside of OSHA. New York City, the Manhattan DA's office at least pre-COVID was pretty vocal that they were gonna pursue some of those issues where businesses were caught short cutting certain safety measures that led to fatalities. And I know that other jurisdictions, some of those DA's offices have been aggressive as well. So again, something to keep our eye out on. And it was a recent announcement by justice, and we'll see where that goes as well. In terms of COVID as much as I think all of us would love to have COVID behind us and having lived through this last two, two and a half so years, I think it's still important to discuss where we are in terms of what OSHA's doing with COVID.

And we'll start in the general industry. I know all of you are aware that OSHA in the general industry tried to pass or did pass an Emergency Temporary Standard, ETS. It shot-or-test rule, which required certain large employers to have the employees get vaccinated or get weekly testing. And obviously we won't get into the details of what the ETS says because on January 13th of 2022, the Supreme Court stayed OSHA's COVID-19 shot-or-test ETS, and following that, I think OSHA then recognized that it would be futile to continue litigating that matter. So, the general duty ETS for COVID was formerly withdrawn by OSHA on January 25th, although OSHA made very clear, even after the Supreme Court had continued to stay on it, that it was going to aggressively protect businesses, well, not businesses, aggressively protect employees from workplace COVID issues through the continued use of the General Duty Clause. Just briefly the General Duty Clause requires employers to have a workplace free from recognized hazards that are likely to cause death or serious bodily harm. And COVID has been one of those areas for the last two years that OSHA has relied on as an enforcement tool in ensuring that that workplaces take the necessary precautions, following CDC recommendations and OSHA's guidance as well in this area. And if they don't, then they're certainly a subject to both an OSHA inspection and a citation under the General Duty Clause. And again, OSHAs continue to make that clear that that's not gonna disappear. And in fact, they have, although there haven't been a lot of General Duty Clause citations related to COVID. There have been some, and there continued to be some as well. So, that employers cannot just disregard OSHA in terms of COVID, now that the ETS is gone, OSHA has also said on a number of occasions that it's going to continue to work on a permanent general industry COVID standard. The timeline historically for permanent standards could take years, quite frankly. So, we'll see where, what happens. Obviously, if Biden's not president, and we have a Republican in office, it's certainly expected that work on that might fade, but it's out there right now in, and OSHA's talking about it.

With respect to that, in January of last year, the president did sign in an executive order, protecting worker health and safety, which aimed at increasing COVID-19 workplace safety measures and told OSHA to revise or take a more active approach in terms of providing employers with new and updated guidance, so we're gonna wait on that. But in the meantime, OSHA's previously published guidance on COVID called protecting workers, guidance on mitigating and preventing the spread of COVID-19 in the workplace is still out there. Again, employers would be remiss to ignore it. In the materials there is a link to it. And that covers everyone who is under OSHA's jurisdiction. So, unlike the ETS that generally only applied to businesses with a hundred or more employees, the general guidance applies to all employers. And so that's certainly something that businesses should continue to keep an eye on and ensure that they're complying with those suggestions at least, at least looking at them. And if they're not able to comply with all of them, then they should have some documentation on the actions that they are taking and why. Again, at the risk of OSHA coming in and issuing general duty citations or citations related to OSHA, such as bloodborne pathogen citations, that are common in this area.

So, the next thing you want to talk about in terms of COVID is the COVID-19 healthcare standard. For those of you in the healthcare space, you certainly know that OSHA did pass an Emergency Temporary Standard that applied to most healthcare organizations with some limited exceptions. That ETS has played out it's life, and on December 27th of last year, OSHA announced the withdrawal of the Healthcare ETS. And at the same time confirmed its intent to issue a permanent infectious disease standard. In which one that would of course cover COVID-19. For those of you in this space, very well may be aware that a number of unions, including the National Nurses United and other unions filed an emergency petition in the DC Court of Appeals seeking to restate the Healthcare ETS and forcing OSHA to issue a permanent standard for healthcare occupational exposure to COVID-19. And again, OSHA wants to do that and they said they're doing that, but the unions are not happy on the timing and also said, "Well, COVID-19 is still a grave danger. So, this thing shouldn't have been lifted in the first place." So, that litigation again is still pending in the Circuit Court of Appeals. There was a merits panel hearing that was heard oral arguments in early April of this year. So, something to stay tuned and see where that litigation eventually leads. But putting aside the litigation and the Circuit Court of Appeals. Again, OSHA has continued to say that even though the Healthcare ETS is formally withdrawn, they are still going to cite and ensure healthcare organizations are doing what they can to provide a workplace free of recognized hazard. under the general duty clause, which we just talked about is also the enforcement tool, under the general duty clause, and they apply that equally to healthcare facilities. And with healthcare facilities, OSHA's gone even further, there's been recent target enforcement of Skilled Nursing Facilities or SNU units, if you will.

We're gonna talk about that a little bit more. what they're doing in terms of enforcements on SNU facilities. OSHA has started the process of rule making for that permitted COVID-19 standard. In fact, the Office of Management and Budget, which is part of the rule making process completed a review of public comments of a healthcare each permanent standard and approved an OSHA notice related to that permanent standard based on the ETS done March 17th of this year. There are public hearing scheduled on that permanent standard right now, I believe on April 27th of 2022. And with written comment deadlines of April 22nd. Those at the time of this recording are coming up very quickly. But if you are in that space, it's certainly worth taking a look at maybe following or even getting involved in that role making process. Because OSHA does like to hear from all stakeholders on issues that this permanent standard is gonna affect. So, that is out there.

That's very timely in terms of the hospitals and Skilled Nursing Facilities targeted enforcement that he has talked about, just to get into that a little bit more as I said in that particular space OSHA has issued a target enforcement effort that's in effect March 9th through June 9th. And during that period, OSHA has listed certain criteria for focused healthcare inspections. And generally speaking OSHA has stated they're gonna follow up on inspections of any prior OSHA audits relating to COVID-19s or where that particular healthcare or SNU facility was issued a hazard alert letter. Briefly, hazard alert letter's when OSHA says, "Look, we got a complaint. Here's what it says. Please look into this and let us know what you've done to abate it." And if you had submitted a response that OSHA was satisfied with, it would not turn into a full-fledged inspection, which would be most of the time. So, even if you got one of those hazard alert letters, you are now a high priority target to receive a follow up inspection. The other criteria that the SNU and hospital target enforcement emphasizes is follow up monitoring inspections for randomly selected COVID-19 unprogrammed activity. Again, if you are in this space as being a hospital or a SNU facility. In the materials, there is a link to the standard interpretation that gets into more detail about the criteria that OSHA's using for this time period. And we certainly have seen in our practice here at Cozen OSHA following through on that initiative and really reemphasizing and revisiting hospitals and skilled units with COVID-19 related issues. So again, if you're in that space, at least as of this recording, you've got a couple of months that you may wanna brace and prepare yourself for such an inspection.

The next issue that I think is always worth talking about is reviewing OSHAs top 10 list. And every year after OSHA compiles its data, it will publish the top 10 citations for the previous fiscal year. So, we are at the point where OSHA has now published for fiscal year 2021, the top 10 list and your materials have them, but I'll briefly run through the top 10. For the 11th year in a row. fall protection leads the way, followed by respiratory protection. Number three is ladders. Number four is scaffolding. Number five is hazard communication. Number six is lockout/tagout. Number seven is fall protection. Number eight is personal protective and lifesaving equipment, eye and face protection. Number nine is powered industrial trucks. And number 10 is machine guarding. So a couple of notes on the top 10 list. First, for the most part these top tens are pretty consistent. Whether one's four one year, or one's seven one year or, one's nine one year. May change a little bit, but the substantive citations are generally pretty consistent. And so for that reason, if you have a client that wants to revisit its safety and health practices, or isn't sure where to start. I always suggest looking at this top 10 list. Obviously, depending on what industry you're in, it may not apply equally, or your client may not be concerned as much for some of these issues. But if you are in a space where these potential hazards could exist, it is certainly worth targeting first, because again, the consistency at which OSHA does cite this top 10 list. And look even that's 2021 is still pretty consistent. Even putting aside that for OSHA the last couple years, have been somewhat unique with them handling COVID related issues. So again, a resource OSHA puts out that is always worth taking a look at, and no different this year.

Let's also talk about OSHA's National Emphasis Program, or NEPs for short. So what are NEPs? Well, NEPs are generally temporary programs that OSHA puts into place to help OSHA focus its I think clear limited resources given its jurisdiction. So, it allows them to focus on particular hazards and high hazard industries, obviously with doing a cost-benefit analysis. If we only have this many resources, where is it best that we place our time and our resources in order to affect the industries that potentially have the greater number of hazards? So generally speaking, that's what a National Emphasis Program is intended to do. This has been a historical program that OSHA has had for a long time obviously, depending on the year. What comes in and what comes out of the NEP, it may differ, existing potential New Emphasis Programs are evaluated using things like inspection data injury and illness data to ensure that again, these resources are being used where they're needed the most so to speak.

Currently, there are a number of NEP, combustible dust is one, COVID of course which we talked about is another, hazardous machinery, lead, primary metal industries, process safety management, ship breaking, silica, trenching, and evacuation, and the last most recent one is heat stress. And I will just let you know that heat stress was the NEP was just announced in April of this year. And I'm gonna talk about heat stress in more detail. So, I'll leave that for a couple of slides, but this enforcement list is published on by OSHA. And there's a link in the materials that shows what OSHA's current NEPs are. Again, if you have clients it in these industries that, particularly the new ones, like heat stress, both indoor and outdoor that are coming in, it is certain worth giving them a heads up because there is a statistically greater chance that a client in this industry where the NPSs are focused on will see inspections and potentially get citations. So again, it was a helpful resource to share with clients in those spaces.

I'm moving on to OSHA penalties. So, for those of you that do practice more in this space, we know that OSHA penalties weren't increased for a long time since 1990, but that changed in August 2nd 2016, where it was OSHA penalties were increased, and since that time OSHA penalties have undergone an annual indexing with an increase based on the CPI, the consumer price index. I will just read to you the current violations, but again, appreciating that every year, these do go up based on the CPI. Right now, willful and repeat violations can run upwards to $145,027, that's per violation. Serious and other than serious violations can run upwards up to $14,502. And again, that's per violation. Failure to abate citations can run the same, upwards into $14,502. And that's on a per day basis beyond the each abatement date.

So clearly, that's very significant if you have committed to obey through an OSHA settlement, it's imperative that clients follow through with those certifications, as putting aside the more important, making sure that businesses have a safe and healthy workplace. Just on the fiscal level, those citations can cost businesses a lot very quickly. And again, there are criminal penalties involved, whether it's lying to an OSHA inspection, or in the worst case scenario, if your business or your client's business has a fatality and OSHA determines that the fatality was caused by a willful violation, there are criminal penalties associated with those. And we talked to both this joint effort with the Department of Justice and OSHA to keep an eye out for potentially increased criminal penalties in those areas.

It's also worth noting that President Biden's Build Back Better Act, which I know has not been in the news as much lately, since it was killed, did propose significant increases to OSHA penalties. Actually, those increases that were proposed in Build Back Better were up to $70,000 for a serious violation, and $700,000 for a repeat and willful violation. I think it's fair to say that even if Build Back Better comes back in some version, and that version contains provisions to increase OSHA penalties, it's not likely we're gonna see a penalty increase jump so dramatically. Candidly, just because that could potentially have devastating effects on small businesses, but it's there, it's clearly an indication of how aggressive this administration wants to be in terms of workplace safety issues and enforcement tools. But again, something to something to keep an eye out on.

Another timely topic I'd like to talk about is OSHA's return to what's commonly called public shaming. And just briefly speaking, historically if OSHA did an investigation, they found relatively serious violation, they would certainly not use this tactic for all violations, but if it determined it was relatively serious and was issuing a significant kind of penalty after the citation was issued, OSHA would then issue a press release, which identified the business, exposed their failings and detailing the hazards discovered in the inspection. Now, this was done after the inspection, after the inspection found, issued this citation. So, it's not like OSHA waited until administrative law judge said, "Okay. These citations are sustained." Because from at least from my perspective, and I think most management lawyers perspective, just because OSHA says you did something wrong, doesn't mean you did something wrong, right? Essentially, it's an allegation. So, historically was always a tactic that many businesses really had pause with because potentially you could argue it's a violation of due process. A judge hasn't determined that these citations are in fact true.

So, what are you trying to accomplish? Well, what OSHA thinks it's accomplishing is, and they've said this, right, that the media attention, OSHA believes serves as the educational deterrent purpose to other entities in the same industry or same geographic area. So, if you cited a meat processing plant for 200 grand for a machine guarding issue in Ohio. Then if that word gets out there, certainly if you're in that industry and particularly if you're in that geographic area, you could potentially take notice and it might cause you to look at your own machine guarding practices. So, I think reasonable people can argue whether that benefit or that objective is one that justifies this public shaming strategy, but that's OSHA's position on it. Although during the Trump administration, the public shaming was not utilized. It was certainly significantly reduced. And here, since Biden has taken over, we've seen a re-emphasis on using, used public shaming as a deterrent tool. And as a sort of a collateral to that during the Trump administration, OSHA had only provided citations in response to a Freedom of Information Act request, which could take several weeks to complete.

So for instance, if a news organization found or heard that a company with a large headline, if you will, is very well known and they want to get information for a news story. They would have to submit a foyer request to get the citations. And again, that could take a while. In January 29th, OSHA said they would resume providing information through press releases and otherwise. And as evidence of that Bloomberg Law reported that it was provided information on an inspection, which resulted in over $400,000 in fines in less than 24 hours after its request. So again, if Bloomberg Law had gone through that process during the Trump administration that would've taken much longer for them to write that story. And here now OSHA has turned that policy around and as evidenced by that Bloomberg Law's comment about how long it took to get information from that inspection. So again, all I think, clearly going towards OSHA objective to create more media attention in the deterrence process.

The next more substantive topic I want to discuss is proposed changes to the electronic record keeping rule. So, let's talk about what the electronic record keeping rule currently requires. So, currently the electronic record keeping rule requires submission of the Form 300A, which is a summary, the OSHA's summary document, as opposed to the OSHA log or the incident report form. So under OSHA, there's generally those three record keeping forms, the 300A, and then the logs, and then the incident report forms. So again, the current record keeping rule requires submission of the Form 300A for covered entities, which is currently defined as establishments with 250 or more employees or establishments with 200 to 249 employees in certain high hazard designated industries. So, a proposed rule published on March 30th, 2020 sought to revive Obama era electronic record keeping and reporting mandates for employers injury and illness data. So, when Obama was in office, he had published proposals that would require a lot more entities to publish certain information electronically to OSHA.

When the Trump administration came back, they rolled back the rule to the requirement that we just talked about just for the 300A electronic filing directly to OSHA on the theory that because the other data had individual identifying information, there was a privacy concern that they couldn't protect the data. So, on that justification, Trump's OSHA said, "You know what. Don't worry about these, just have these entities file the Form 300A." The current administration and defending that it wants to go back to the, for lack of better the full rule, which we will talk about in a minute, has said that recent advancements in technology will now allow OSHA to remove public disclosures of any identifying details. So, based on what they are pointing to as an advancement in technology, which I guess the skeptic might call into question, but putting that aside, they are now justifying their new record keeping role.

So, what is the proposed rule require? Well, it would require electronic submission of forms 300, 301 and 300A. Those are the three general forms we just talked about. So, it's gonna require electronic submission to OSHA of all three forms, as opposed to just the summary by employers with a hundred or more workers. And that's defined at any time during the previous calendar year in certain high hazard designated industries, which OSHA will publish, which I suspect will be pretty consistent with the high hazard designations we currently have. But again, applying to all of the forms with a smaller threshold of a hundred or more workers. The current proposal would remove the requirement for establishments with 250 or more employees, not in the high hazard designated industries to submit the Form 300A. So again, from at least from the business perspective, that actually would remove a requirement for a certain large employers. It would also require establishments to include the company name in this submission, which currently you don't have to do. Establishments with 20 or more employees and designated high hazard industries are required to submit the 300A once a year. And there's a 60 day public comment period, which expires May 28th. So again, for those of you that have clients or may be a business. You will be a covered entity. You may want to consider getting involved in that public day comment period, so OSHA can hear any concerns that stakeholders may have.

So a collateral issue in terms of the electronic illness and injury record reports is enforcement, and there is a recent enforcement that talks about that, that I wanna discuss briefly. So, the OSHA Form 300A data, and this is just again, generally speaking to give you some timelines on when covered employers need to provide these. The current Form 300A for the preceding calendar year must be electronically submitted to OSHA each year by March 2nd of the following year. And there's a six month date to issue citations for non-compliance. So by way of example, data for calendar year 2020 must be submitted to OSHA by March 2nd, 2021. And OSHA may issue a citation for failure to submit until September 2nd, 2021. So we could just use, I guess, more relevant dates. So by March 2nd, 2022, we can go back for the 2021 year. And so if you are a covered entity and you have not submitted for last year, then you can potentially be cited up to September 2nd of this year for that violation. So, those enforcement tools, there's a link if you wanna look at the criteria a little bit more in the materials.

But OSHA has said a number of years ago that they are developing an analytical tool to identify non-responders. And true to their word, OSHA on April 5th of this year did release and announced that it had developed a method to track non-compliers to this electronic record keeping rule, and that it will use data from a reporting tool known as the ITA or the Injury Tracking Application, as well as inspection records to identify and take action against employers who fail to provide the required Form 300A. So basically what OSHA's gonna do is they're gonna match open inspections against the list of establishments that have failed to submit their 2021 Form 300A data to create a list of potential non-responders by area office. And not surprisingly OSHA believes that submission of these forms is critical and very important to their mission of providing public access to injury illness data for industries, companies, and establishments, and allows workers, employers, potential employees and others. Others probably meaning unions, but to better understand workplace safety and health outcomes that an employer or an industry. And that would allow them to make valuable insights and informed decisions, I guess from the employee standpoint, whether you wanna go work there or not, and employers of all sizes can use this data to benchmark with others in their industry to compare their results across their operations.

So again, OSHA's theory is that it presents helpful information for both businesses and employees alike. So, they have a memo and again, in your material is a link to that if you wanna take a look at that for more information about this enforcement programs in that area. The next thing I'd like to talk about is a recent case talking about personal liability for OSHA penalties. So as general rule, there is no statutory provision that would allow OSHA to cite a supervisor or an owner personally for OSHA penalties. But of course under normal traditional common law rules, you can pierce the corporate veil to get personal liability to certain owners or supervisors. And in the OSHA arena, that's no different, that that common law remedies exists in a recent decision that was published by an ALJ. At least that consolidated a number of cases against the same owner, highlights that. The case citation is in the materials. It's the secretary of labor against Juan Garcia. And in this case, an ALJ did find an owner liable for approximately two millions in OSHA penalties. That particular owner held the majority of interest in a limited liability company and served as it's only officer.

The ALJ based liability on alter ego theory of statutory employer. And then under the alter ego theory, both the corporation and the individual can both be considered the employer simultaneously, so that's the theory that the ALJ accepted. And again, it was based on piercing the corporate veil, The ALJ there examined a number of factors to determine whether the corporate veil should be pierced. And whether the existence of a separate corporate personality was respected and a number of those factors. And again, these are generally pretty common in other areas of the law where lawsuits are trying to do this gross under capitalization of failure to observe corporate formalities, non-functioning of other officers and directors, nonpayment of dividends, siphoning of funds. Is the corporate forum really a facade for operations, for the individuals. And, do the facts show that the individual tried to circumvent the particular act. And here OSHA, if you read the case, I think you'll find that the LGA, I think rightfully determined that there are some egregious facts here that the owner really is trying to evade OSHA, creating separate corporations and ignoring prior citations and ignoring safety practices that he had clear knowledge of through prior citations and allowed the personal judgment to go forward. I think, realistically speaking, if you are a small business, particularly the only owner it's more realistic that this may be a problem, as opposed to large Fortune 500 companies.

But that being said, of course not just for OSHA purposes, it's always important to have our clients ensure that they're respecting the proper corporate formalities. And OSHA is no different. The next thing I'd like to talk about is two recent opinion letters, standard interpretations on recording OSHA injuries. And again, as we talked about on your OSHA logs, certain work related injuries have to go on those OSHA logs. So this particular, these two particular standard interpretations deal with motor vehicle accidents. The general rule with motor vehicle accidents is that injuries and illnesses, such as those sustained in a car accident that occurs during an employee's normal commute time from home to work are not work related and thus not recordable under the regulations, and meaning they're not recordable on your OSHA 300 log. In a standard interpretation, OSHA said that if the employee has ended their typical workday and is called back to work to assist with an emergency, and then is injured in a motor vehicle accident on their way back to the workplace, then that would convert and mean that the injury is recordable. The theory is as the employee was required to return to the workplace outside of their normal commute time, then that employee was engaged in work activity in quote, unquote, in the interest of the employer, thus the injury, the resulting injury must be recorded on the OSHA 300 log.

So by logical extension then, the fatality or inpatient hospitalization, which many of you or all of you may know has to be affirmatively reported to OSHA any given amount of time, depending on whether it's a fatality or inpatient hospitalization. But in this situation, if the motor vehicle accident did result in a fatality inpatient hospitalization, then that would also need to be affirmatively reported to OSHA within the time period, depending on what it is. So again, a little caveat to the normal rule that injuries that occur in the normal course of commuting are not recordable. And as an expansion of that on March 17th, OSHA did issue a standard interpretation talking again about recording motor vehicle accidents in OSHA logs. And here, the fact pattern is that if an employee is required to visit multiple customer sites scheduled during the work day and the employee leaves her home to travel to the first customer contact, but before arriving at the work site and is involved in a motor vehicle accident, that results in medical treatment beyond first aid, which again, that would normally trigger a recording. The question was asked whether that is recordable. And here OSHA, I think rightfully so, determined that the employee's first trip from the home to the customer site is considered a normal commute. Thus it is not work related, it does not need to be recorded in the OSHA 300 log.

So I think here, the important point is if somebody is going from home to first work site, that's essentially like going from home to an office site. And so that's normally gonna be considered not recordable, because it's not work related. And the same theory in the back end, right? So, if an employee is a traveling salesperson and they have to travel five different sites and then from the last site goes home, then a motor vehicle accident from the last site going towards the home is gonna be considered normal commute time. It doesn't have to be recorded. The other fact pattern is when an employee travels to another state he checks into a hotel the next morning, the employee travels to the first customer contact. One of many scheduled for that day. Again, multiple client meetings that day. But before arriving at the work site, the employee's involved in a motor vehicle accident that results in medical treatment beyond first aid. Here, OSHA determined that the employee on travel status who checks into a hotel or other temporary residence for that matter has established a home away from home. Thus the injury while traveling to the first work site is not considered work related and it's not recordable. So, I think all of those principles are pretty consistent.

Again, the hotel essentially becomes your home. So, any travel from that hotel to the first work site is going to be treated as a normal commuting time. And those principles are articulated in a standard interpretation with a link in the materials. And the last recording standard interpretation I wanna talk about is one that's states there's no need for double reporting of related injuries and illnesses. So, in January of 2021, OSHA said employers are not required to double report injuries and illnesses for a second related event, when the first has already been reported. So by way of example, if an employer reports an inpatient hospitalization, which it is required to do within 24 hours and does that, and then obviously the worst case scenario, if that employee then undergoes surgery and passes away later, due to that same work related injury. The employer is not required to report the fatality, right?

So, it's the injury that led to the inpatient hospitalization. That gets affirmatively reported to OSHA. And by the way, there's on the OSHA website, there's who you can talk, who you can contact and what you need to report. But assuming that that's done and that same employee then passes away through the same injury, then there is no second reporting issue. And I think that had been an open question for a period of time. So, thankfully OSHA has clarified that. And by another way of example, something like less tragic. If an employer reports an inpatient hospitalization within 24 hours and then while hospitalized, the employee's arm has to be amputated due to work related injury, then the amputation would not trigger the second reporting obligation because again, the first inpatient hospitalization had already been reported.

So, moving on to heat stress, and we had talked about heat stress as a new National Emphasis Program. I think talking about heat stress is I think it's always a good starting point to go back to a OSHRC commission case, in A.H. Sturgill Roofing, a number of years ago, where the commission dismissed a number of consolidated heat stress citations. And in that dismissal, really question the use of the General Duty Clause for heat stress and quite frankly, other hazards. And they called it a gotcha provision. So, and they invited, the commission invited OSHA to engage in rule making and said, really that should be the normal course instead of using a General Duty Clause for these kinds of issues. And so I think OSHA seemingly listened to that. And then in 2019 OSHA published an advanced notice of proposed rule making for heat injury and illness prevention in outdoor and indoor work settings in the Federal Register, which really formally starts the rule making process. And I do note that heat stress is not just an issue and certainly OSHA doesn't look at it as just outdoors. Clearly that's most people will think of working outside and directly in this sun as a heat stress issue. But OSHA wants to make clear that these situations could also apply indoors as well, particularly in manufacturing or, well manufacturing for that matter is one that jumps out in mind, but it could be any industry.

So just, a point to remember, public comments period closed on the heat stress in January of this year. And, I don't necessarily wanna get into like all of the different components, because we'll see what happens. But for those of you that are in this space, there are certain justifications that OSHA has identified that really have looked at this heat stress issue a lot in the last couple of years. And some of those include inequities and the exposure and outcomes among workers of color and low wage earners. They wanna look, they're talking about prevention plans and programs, training this area, costs at looking at economic impacts and benefits. Clearly climate change could have an impact on heat stress. They wanna look at that. Planning and responding to emergencies and the issue of underreporting of heat related illnesses and engineering and administrative controls, which again happens for every hazard and the appropriate PPE to wear. So, those are the issues that OSHA is considering, reviewing public comments on in furtherance of publishing a permanent standard. And again, even though there's not a permanent standard out there, OSHA has historically and will continue to cite under the General Duty Clause. There is current OSHA guidance for folks that this may have employees in working conditions where heat stress hazards can exist. In the materials, there's a link to that. Certainly worth taking a look at, particularly since there is a National Emphasis Program. And if you are in an industry or a business where employees are subject to heat stress illness. There's gonna be an increased likelihood that you will see an inspection, potentially a complaint since there's a lot more information out there now on this issue.

So, the current guidance is providing workers with rest, water and shade. Allowing new workers to acclimatize. That's a big point, particularly with COVID. That means workers coming back to work need a chance to have their bodies get used to the heat again. And there's a plan for emergencies. And obviously for ways that employers can monitor for signs of heat illnesses. So, continuing with heat stress. On September one of last year, there's some data that OSHA has shared that BLL reports from 2011 to 2019. Heat cases resulted in average of 38 fatalities in a year, and in average of 2,700 cases away from work. Again, OSHA believes it's underreported. And so there's citation guidance on how they're gonna cite for these. Worth taking a look and sharing with your clients, if they are in this space. Link is in the materials.

I just wanna talk quickly about workplace violence. And there was a workplace violence case in 2015 where the commission upheld a general duty citation for a workplace violence incident, where tragically an employee was stabbed and she was in the social services space. And unfortunately, it's hard to watch the news on any given week and not hear about a workplace violent industry. So, this has been on OSHA's radar for a while. They've been talking about a permanent standard. OSHA began gathering information in 2016 about workplace violence. And started actually doing a small business impact analysis, which needs to be done before issuing a private rule. So, just something to be aware of. I don't think this is gonna be imminent. but OSHA's looking at it, whether it's gonna be a general industry standard or something specific in healthcare, where obviously there's a concentration of these issues remains to be seen. But OSHA does have guidance for healthcare specifically. And there's a link in the materials that's worth taking a look at if you have clients in that space.

The next rule making that I want to talk about that I think affects a lot of people. I mean actually 4 million employees, if OSHA's numbers are correct and that's Hazard Communication Standard, HCS. So, the Hazard Communication Standard is the primary regulations for governing labels and safety data sheets for hazardous chemicals in the workplace. There was a final rule issued March 26th of last year, that will affect more than 5 million businesses and more than 40 million employees, as I just mentioned, which will need to be retrained on the hazard of communication. And the intent was to bring the U.S. into alignment with the international community, which uses the Globally Harmonized System of Classification and Labelling of Chemicals, GHS for short. OSHA estimates that the annual compliance cost with the final rules giving more than 2 million for employer. So, it's certainly something that is gonna touch upon, not even touch upon, but certainly have an impact on the bottom line. There are three major areas of change to the new HazCom rule, hazard classification provisions of labels and safety data sheets, and training. Again, it's pretty detailed. If you're in this space, I'm guessing you're already very familiar or should be getting familiar with all of these changes.

But generally speaking hazard classification changes means that the chemical manufacturers used to determine whether and to what extent a chemical is hazardous. There are changes in that area in terms of provision of labels and safety data sheets. Once a manufacturer classifies a hazardous chemical, it must then communicate that information to users. And so the new rule standardizes the labels and safety data sheets used to convey this information. And then there are training, there are changes to training, which of course requires employers to train employees in the new hazard classifications, labels and SDSs. So, every employer that has a hazard communication program will need to retrain its employees in the new system.

So, obviously a huge issue that if you're in this space, you should be taking a look at closely. They're are two major compliance states, December 1 of 2013 is a date to train employees on the new elements of the SDS formats. And June 2nd, 2015 is full compliance with the final rule, except a couple of other small exclusions that apply to distributors. And there's also a June 1, 2016 deadline for employers to update an alternative workplace labeling hazard communication programs. So again, there's a final rule link in the materials that's definitely worth the look, if you haven't already, if you are in that space. Lead exposure rule is also, OSHA's also moving ahead with that. That's been a long awaited update to lead exposure standard, and that's being driven primarily with CDC recent medical findings, showing that the blood lead levels limits, BLL are not stringent enough to avoid health harm.

The Office of Management and Budget in March 29th began review of an OSHA notice seeking public input to updating that legal standard, which again is almost six years after the agency first announced its plans for rule making. Which goes back to my earlier point that this permanent rule making process could go certainly years. It's worth noting the current standard for lead toxicity is over 35 years old. So it certainly makes sense that OSHA's taking a look at this and they are seeking, again through the public that we will be seeking through the rulemaking process, input on BLL triggers and related issues. So, something to keep an eye on, again, if you're in an industry that has that hazard.

OSHA is also focusing on an emergency response rule, making applying to fire brigades, workplace emergency response teams. It does not apply to first responders solely engaged in law enforcement. So, they've published a request for information, held some stakeholder meetings and convened a multi-agency panel to gather information. That will be something to keep an eye on. And finally, two other pre-stage rules. So, we're gonna be years probably from seeing anything. But they're looking at revising recommended process safety management and prevention practices needed to avoid chemical accidents in regard to highly hazardous materials. In there, they wanna emphasize, as OSHA normally does encouraging greater employee involvement, and OSHA's looking to update mechanical power press requirements, which they gathered public comments in last year.

So, I know that's a lot of information and I appreciate everyone taking the time to listen in. Hopefully you found some of it informative. And thank you Quimbee again.

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1h 3m 40s

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