Covered employers must post injury and illness summaries from February 1 through April 30.
Don’t get caught by OSHA for not posting the OSHA 300A Form. This is a reminder that employers have an obligation to post a copy of OSHA’s Form 300A. The 300A reports an employer’s total number of deaths, missed workdays, job transfers or restrictions, and injuries and illnesses as recorded on Form 300 during 2015. It also includes the number of workers and the hours they worked for the year. Only the summary must be posted. The OSHA 300 Log itself does not need to be displayed but must be available for inspection by employees, their representatives or OSHA investigators. Employers with multiple job sites should keep a separate log and summary for each location that is expected to be operational for at least a year.
The 300A Summary must be signed by the highest-ranking person at the site, not the person filling out the form or the Human Resources Director. The company executive signing the Form 300A is certifying that he or she has reviewed both the OSHA Form 300 Log and Form 300A Summary and he or she reasonably believes that the Summary Form is correct and complete. Be certain that the executive signing the form is one of the following: owner of the company (but only if the company is a sole proprietorship or partnership); officer of the corporation; highest-ranking company official working at the establishment; or immediate supervisor of the highest-ranking company official working at the establishment.
Businesses with 10 or fewer employees and those in certain low-hazard industries are exempt from OSHA recordkeeping and posting requirements. As of January 1, 2015, certain previously exempt industries are now covered. Lists of both exempt and newly covered industries are available on OSHA’s website, www.osha.gov. Visit OSHA’s Recordkeeping Rule webpage for more information on recordkeeping requirements – https://www.osha.gov/recordkeeping/index.html.
Stephen A. Burt, MFA, BS
Chair, AOHP Government Affairs Committee
April 2016
On September 18, 2014, OSHA issued a final rule revising its occupational injury and illness recordkeeping and reporting requirements in 29 C.F.R. 1904. Shortly before OSHA’s new injury and illness reporting requirements came into effect last January, OSHA issued Interim Enforcement Procedures for New Reporting Requirements under 29 C.F.R. 1904.39. These interim procedures served as enforcement guidance for Area Offices and compliance officers when issuing citations to employers for failing to report injuries under the new requirements. On March 4, 2016, the agency issued revised enforcement procedures, Revised Interim Enforcement Procedures for Reporting Requirements under 29 C.F.R. 1904.39, due to the “influx of workplace incident reports to OSHA and the field’s experiences with the new reporting requirements.” The revised procedures raise the maximum fine 400% for failing to timely report a work-related severe injury and increase the likelihood for on-site inspections of employers who report a serious injury.
Maximum Fine Increased for Failing to Report a Reportable Incident Within 24 Hours of Learning of the Incident.Previously, the maximum fine was $1,000 with an option to reduce the fine (e.g., for small businesses.) The maximum fine is now increased 400% and is set at $5,000, with the same reductions still available. This does not, however, change the Area Director’s authority to raise the unadjusted penalty as high as $7,000 if s/he “determines that it is appropriate to achieve the necessary deterrent effect.” Under the revised enforcement procedures, the violation will still be classified as other-than-serious.
Monitoring Inspections. After an employer has reported a reportable event (fatality, inpatient hospitalization, amputation or loss of an eye), OSHA makes a decision – based on the “category” of the incident – whether to conduct an on-site inspection or a Rapid Response Investigation (RRI). If an RRI is initiated, OSHA sends a letter to the employer, and the employer agrees to conduct its own internal investigation, take steps to abate any hazards, and provide a written response to OSHA. The new guidance provides for monitoring inspections of closed RRIs “based on a randomized selection of closed investigations.” This means that, in some cases, where OSHA informs an employer an RRI is closed, there still remains the potential for an on-site inspection to confirm abatement of the hazardous condition that resulted in the reportable injury. The agency claims this is to ensure accuracy in the reporting and has said that the inspection “will be limited to an inspection of the previously reported condition.” Further, OSHA has said that anything uncovered by the employer in the course of its internal investigation will not be used by the agency to cite the employer provided “employees are not exposed to a serious hazard” and “the employer is taking diligent steps to correct the condition.”
OSHA’s updated enforcement guidance does not change the practice of segregating reports into one of three categories based on factors such as injury severity, the age of the injured workers, whether the workers were temporary and the worksite’s inspection history.
Category 1 is reserved for reports that require an inspection.
Category 2 reports may result either in an inspection or an RRI.
Category 3 reports are RRI only.
The new memorandum additionally offers more guidance for Area Offices to use when deciding whether to launch an initial inspection, such as providing updated questions inspectors may ask when talking with employers. Revised flow charts are also provided to help with understanding the intake process.
Revisions in the memorandum include additional guidance on:
A safe harbor provision for employers who conduct internal investigations during the RRI.
Monitoring inspections of closed RRIs.
Increased penalties for failure to report.
Updated fill-in Appendices.
A flow chart for coding.
To read more, OSHA’s enforcement guidance may be viewed in full at http://src.bna.com/daT.
OSHA has issued one of its last final rules for this administration, “Clarification of Employer’s Continuing Obligation to Make and Maintain Accurate Records of Each Recordable Injury and Illness.” The final rule was published December 19, 2016 in the Federal Register (81 Fed. Reg. 91792). OSHA is amending its recordkeeping regulations to clarify that the duty to make and maintain accurate illnesses is an ongoing obligation. The duty to record an injury or illness continues for as long as the employer must keep records of the recordable injury or illness; the duty does not expire just because the employer fails to create the necessary records when first required to do so. The newly released amendments consist of revisions to the titles of some existing sections and subparts and changes to the text of some existing provisions. The amendments add no new compliance obligations and do not require employers to make records of any injuries or illnesses for which records are not currently required to be made.
The final rule amends the OSHA recordkeeping regulations to clarify that the duty to make and maintain accurate records of work-related injuries and illnesses is an ongoing obligation. The duty to make and maintain an accurate record of an injury or illness continues for as long as the employer must keep and make available records for the year in which the injury or illness occurred. The duty does not expire if the employer fails to create the necessary records when first required to do so. The final rule revises §1904.29(b)(3) to state:
How quickly must each injury or illness be recorded? You must enter each and every recordable injury or illness on the OSHA 300 Log and on a 301 Incident Report within seven (7) calendar days of receiving information that the recordable injury or illness occurred. A failure to record within seven days does not extinguish your continuing obligation to make a record of the injury or illness and to maintain accurate records of all recordable injuries and illnesses in accordance with the requirements of this part. This obligation continues throughout the entire record retention period described in § 1904.33.
The amendments in this rule are adopted in response to a decision of the United States Court of Appeals for the District of Columbia Circuit. In that case, a majority held that the Occupational Safety and Health Act did not permit OSHA to impose a continuing recordkeeping obligation on employers. One judge filed a concurring opinion disagreeing with this reading of the statute, but finding that the text of OSHA’s recordkeeping regulations did not impose continuing recordkeeping duties. OSHA essentially disregards the original Occupational Safety and Health Act’s (OSH Act) six-month statute of limitations and the final rule allows OSHA to cite employers for such recordkeeping violations for up to six months after the five-year retention period expires. OSHA disagreed with the majority’s reading of the law, but did agree that its recordkeeping regulations were not clear with respect to the continuing nature of employers’ recordkeeping obligations. This final rule is designed to clarify the regulations in advance of possible future federal court litigation that could further develop the law on the statutory issues addressed in the D.C. Circuit’s decision.
This final rule becomes effective on January 18, 2017.
OSHA has issued a Notice of Proposed Rulemaking to add two quantitative fit-testing protocols to the agency’s Respiratory Protection Standard. The proposed protocols are variations of the existing OSHA-accepted PortaCount® protocol, differing from it by the exercise sets, exercise duration and sampling sequence. The protocols would apply to employers in the general, shipyard and construction industries.
Appendix A of the standard contains mandatory respirator fit-testing methods that employers must use to ensure their employees’ respirators fit properly and protect the wearer. The standard also allows individuals to submit new fit-test protocols for OSHA approval. TSI Incorporated submitted an application for new protocols for full-facepiece and half-mask elastomeric respirators, and filtering facepiece respirators.
This proposed rulemaking would allow employers greater flexibility in choosing fit-testing methods for employees. It would not require an employer to update or replace current fit-testing methods, as long as the fit-testing method(s) currently in use meet existing standards. The proposal also would not impose additional costs on any private- or public-sector entity.
OSHA invites the public to comment on the accuracy and reliability of the proposed protocols. Individuals may submit comments electronically at www.regulations.gov, by mail or fax by December 6. For more information, see the official OSHA news release.
The entire Proposed Rule, Additional PortaCount® Quantitative Fit-Testing Protocols: Amendment to Respiratory Protection Standard, can be read at this webpage.
On December 6, 2016 the US Department of Labor’s Occupational Safety and Health Administration (OSHA) issued a Request for Information (RFI) on whether the agency should propose a standard aimed at preventing workplace violence in the health care and social assistance sectors. The RFI follows a report from the Government Accountability Office (http://www.gao.gov/assets/680/675858.pdf) that found rates of workplace violence in those industries are “substantially higher” than in private industry overall. The full extent of the issue is unknown, GAO stated, but the most recent available data from 2013 showed that health care workers at in-patient facilities, including hospitals and nursing and residential care facilities, experienced a rate of workplace violence five to 12 times greater than the general private-sector worker population.
In 2011, the most recent year data is available, there may have been as many as 80,170 instances of violence against workers in healthcare facilities, OSHA has stated. According to GAO, the most common types of reported assaults are hitting, kicking and beating. They also report that incidents likely are underreported.
In July, a coalition of labor unions sent a petition to Secretary of Labor Thomas Perez, calling for a standard on preventing workplace violence in health care. That same month, Silver Spring, MD-based National Nurses United sent its own petition to Perez and OSHA administrator David Michaels, detailing proposed elements of a standard.
The deadline to submit comments is April 6, 2017 and a public meeting on the matter has been scheduled for January 10 in Washington.
NIOSH has just recently added 34 drugs to its list of drugs that have the potential to be hazardous to an estimated 8 million U.S. health care workers. The list can be accessed from here.
This list categorizes drugs into these groups: 1) antineoplastic drugs 2) non-antineoplastic hazardous drugs, and 3) drugs with reproductive effects. And it includes 34 drugs not found on previous lists, five of which include the manufacturer’s safe handling warnings; general guidance on engineering controls and personal protective equipment for various activities that may be encountered in health care settings have been updated. A drug’s toxicity, how the drug can enter the body, how the drug is handled and what exposure controls are used determine the drug’s risk to health care workers, NIOSH stated.
The NIOSH List of Antineoplastic and Other Hazardous Drugs in Healthcare Settings, 2016 also updates guidance on engineering controls and personal protective equipment for health care settings. The document offers instructions on how to create a workplace-specific list of hazardous drugs, as well as guidance for assessing a drug’s hazardousness.
“Hazardous drugs include those used for cancer chemotherapy, antiviral drugs, hormones, some bioengineered drugs, and other examples of hazardous drugs,” NIOSH Director John Howard said in a press release. “The NIOSH 2016 Hazardous Drug List is an important resource as well as a tool to raise awareness among workers about the hazards [of] some drugs, enabling workers to take the necessary steps to protect themselves from exposure while doing their job.”
The new document, “NIOSH List of Antineoplastic and Other Hazardous Drugs in Healthcare Settings, 2016,” is the latest version of a list first published by NIOSH in 2004 as an appendix to an Alert about antineoplastic and other hazardous drugs used in health care settings.
