OSHA Not Letting Up on Inspections, Penalties

industrial safety

Despite expectations, Fed-OSHA under the Trump administration has not backed off on enforcing workplace safety regulations.

In fact, the agency is as aggressive as ever and citations are higher than ever as well, after fines were increased substantially three years ago. Based on the agency’s own statistics, a company that’s inspected has only a 25% chance of not receiving a single citation.

In other words, employers should not let up on their safety regimens to not only avoid being cited but also to avoid workplace injuries, which nobody wants.

Here’s what’s going on with OSHA.

Enforcement emphasis still going strong – There are more than 150 local and regional enforcement emphasis programs as well as nine national programs in effect that were implemented at the end of the Obama administration. OSHA is dutifully enforcing them all.

Budget bucks the trend – Despite the budget-cutting at many federal agencies, OSHA saw a $5 million increase in its fiscal year 2019 budget from the year prior. Most notably, that was the first budget increase since 2014. In addition, state-run OSHA programs also received a small budget enhancement of $2 million.

Fines increasing – There has been no attempt to reverse the maximum fines for workplace safety violations. They were increased substantially in 2016, thanks to new regulations that require that the fines be increased every year after to keep up with inflation.

At the start of 2015, the maximum fines were:
• Serious or other-than-serious posting requirements: $7,000
• Failure to abate beyond initial violation date: $7,000 per day the condition continues
• Willful or repeat violations: $70,000

For 2019, the following fines apply (and they increased about 2.5% across the board):
• Serious or other-than-serious posting requirements: Up to $13,260
• Failure to abate beyond initial violation date: Up to $13,260 per day
• Willful or repeat violations: Minimum of $9,472, up to $132,598

Inspections stable – The number of inspections has stayed the same as years prior.

Focus on repeat violators – A continued focus on repeat violations has continued, with 5.1% of all violations in this category. The percentage has been over 5% since FY2016.

General duty clause – There has been continued expansion of the general duty clause to cite employers for heat stress, ergonomics, workplace violence, and chemical exposures below the permissible exposure limit.

New emphasis

And 2018 also saw a new effort by OSHA to fine-tune its work. It issue a memo in May that formalized the use of drones (with the employer’s consent) to collect evidence. This has been somewhat controversial because it could enhance its ability to find other violations it might not normally find.

According to the Fiscal Year 2019 Congressional Budget Justification for the Occupational Safety and Health Administration, increased enforcement seems to be more likely than a decrease. It also seems, although there have been no officially released statements, that the new electronic injury and illness reporting information will be used by OSHA and state plans to increase enforcement.

The increased budget, according to the Congressional Budget Justification, will support additional compliance safety and health officers to provide a greater enforcement presence and provide enhanced technical assistance to employers who need help in understanding how to achieve compliance with OSHA standards.

Top 10 Laws and Regulations for 2019

Every year comes with new laws and regulations that affect employers.

It pays to stay on top of all the new requirements, so we are here to help you understand those that are most likely to affect your business. The following are the top 10 laws, regulations and trends that you need to know about going into 2019.

1 Sexual harassment training

Since 2005, California law has required employers having 50 or more employees to provide at least two hours of sexual harassment training to supervisors every two years. SB 1343 changes this by requiring employers with five or more employees to provide non-supervisory employees with at least one hour by Jan. 1, 2020.
In addition, this training must be held every two years. Employers with five or more workers must provide (or continue to provide) two hours of the biennial supervisory training, as well.

2 Data privacy

Companies that collect data on their customers online should start gearing up in 2019 for the Jan. 1, 2020 implementation of the California Consumer Privacy Act of 2018, which is the state’s version of the European Union’s General Data Protection Regulation.

The law gives consumers the following rights in relation to their personal information:

  • The right to know, through a general privacy policy and with more specifics available upon request, what personal information a business has collected about them, where it was sourced from, what it is being used for, whether it is being disclosed or sold, and to whom it is being disclosed or sold;
  • The right to “opt out” of allowing a business to sell their personal information to third parties;
  • The right to have a business delete their personal information; and
  • Not be discriminated against by opting out.

The law applies to businesses that:

  • Have annual gross revenues in excess of $25 million,
  • Annually buy, receive for their own commercial purposes, or sell or share for commercial purposes, the personal information of 50,000 or more consumers, households or devices, and/or
  • Derive 50% or more of their annual revenues from selling consumers’ personal information.

    3 Independent contractors

While this legal development happened in 2018, now is a good time to go over it. In May, the California Supreme Court handed down a decision that rewrites the state’s independent contractor law.

In its decision in Dynamex Operations West, Inc. vs. Superior Court, the court rejected a test that’s been used for more than a decade in favor of a more rigid three-factor approach, often called the “ABC” test.

Employers now must be able to answer ‘yes’ to all three parts of the ABC test if they want to classify workers as independent contractors:

  • The worker is free from the control and direction of the hirer in relation to the performance of the work, both under the contract and in fact;
  • The worker performs work that is outside the usual course of the hirer’s business; and
  • The worker is customarily engaged in an independently established trade, occupation, or business of the same nature as the work performed for the hirer.

The second prong of the ABC test is the sentence that really changes the game. Now, if you hire a worker to do anything that is central to your business’s offerings, you must classify them as an employee.

4 Electronic submission of Form 300A

In November 2018, Cal/OSHA issued an emergency regulation that requires California employers with more than 250 workers to submit Form 300A data covering calendar year 2017 by Dec. 31, 2018. The new regulation was designed to put California’s regulations in line with those of Federal OSHA.

Starting in 2019, affected employers will be required to submit their Form 300A data by March 2. For instance, the 2018 summary would have to be posted before March 2, 2019. The law applies to:

  • All employers with 250 or more employees, and
  • Employers with 20 to 249 employees in specified high-risk industries.

    5 Harassment non-disclosure

This law, which takes effect Jan. 1, 2019, bars California employers from entering into settlement agreements that prevent the disclosure of information regarding:

  • Acts of sexual assault;
  • Acts of sexual harassment;
  • Acts of workplace sexual harassment;
  • Acts of workplace sex discrimination;
  • The failure to prevent acts of workplace sexual harassment or sex discrimination; and
  • Retaliation against a person for reporting sexual harassment or sex discriminat

The big issue employers will need to watch out for, according to experts, is that the new law could actually keep the employer and employee from reaching resolutions for disputes.

We will cover the five other top laws and regulations in our next blog post. 

Cal/OSHA Issues Emergency Rules for Posting Injury Forms Electronically

Financial Figures Data Analyzing

Cal/OSHA is implementing emergency regulations that require California employers with 250 or more employees to submit their 2017 Form 300A summaries electronically by the end of this year. That’s the form that you signed and posted in your workplace from Feb. 1 to April 30.

Form 300A contains only the summary of injuries and is not the actual log, which contains the names of the employees who were injured.

For the electronic filing, you will simply take the same information on the form you posted earlier this year and enter it into an electronic database.

The short ramp-up period will require employers to quickly act to comply with the emergency regulations, which were approved by the state’s Office of Administrative Law in early November. The new regulations were implemented on an emergency basis to put California’s regulations on par with those of Federal OSHA.

Who do the new rules apply to?

The new regs apply to the following employers:

  • Those with 250 or more employees, unless specifically exempted by section 14300.2 of Title 8 of the California Code of Regulations.
  • Certain employers with 20 to 249 employees in specific industries that are listed in Appendix H of the emergency regulations.

Among the industries in the latter category are:

  • Agriculture
  • Construction
  • Manufacturing
  • A number of retail businesses
  • Transportation
  • Warehousing
  • Health care

You can find a full list of the above industries on pages 8-10 in Cal/OSHA’s emergency regulations: www.dir.ca.gov/dosh/doshreg/Recording-and-Reporting/Text-of-Amended-Regulation-Revised.pdf

Employers that do not have to fill out OSHA logs include:

  • Those that had 10 or fewer employees during the entire year; and
  • Those that have 20-249 employees, but their industry does not fall within the list of “high-risk industries,” as above.

After this catch-up period at the end of the year, all applicable employers will be required to submit their Form 300A electronically every year going forward.

Until Cal/OSHA promulgates new regulations to make that a permanent rule, the agency advises all applicable employers to follow the instructions on Fed-OSHA’s “Injury Tracking Application” webpage: www.osha.gov/injuryreporting/index.html

Cal/OSHA will be implementing its own online tool and when it does, we will notify you.

New OSHA Deadline for Fall Protection

Slips, trips and falls are some of the leading causes of workplace injuries. They account for 20% of all workplace fatalities, disabling injuries and days away from work in general industry.

The injuries and risks are so common that four of the top 10 most cited standards by OSHA are related to fall prevention.

With that in mind, you should be aware of changes to OSHA regulations that take effect Nov. 19, 2018. The changes are part of a larger rewriting of the general industry walking-working surfaces standards that took effect in 2017.

Specifically, those rewritten standards:

  • Clarified definitions
  • Eliminated overly specific application conditions
  • Better organized the requirements
  • Simplified general requirements
  • Aligned more closely with the construction standard, and
  • Gave flexibility to use personal fall protection systems in lieu of guardrail systems.

The fixed ladders provision

That said, one area that was left for later implementation was standards for fixed ladders.

Under the revised standard, cages or wells for fall protection on fixed ladders higher than 24 feet are no longer acceptable. However, there are grandfather provisions and a phase-in period for the new provisions:

  • Fixed ladder systems installed before November 19, 2018 must have a cage, well, ladder safety system or personal fall arrest system
  • Fixed ladder systems installed on or after November 19, 2018 must be equipped with a personal fall arrest system or ladder safety system (cages or wells for fall protection are no longer acceptable).
  • When any portion of a fixed ladder is replaced, the replacement must be equipped with a ladder safety or personal fall arrest system.

What’s happening on the ground

OSHA continues to take the risks of slips, trips and falls seriously and continues to focus on some of the most overlooked areas that can contribute to these incidents. The most cited citations in OSHA’s 2017 fiscal year, which ended Sept. 30, 2017, were for general requirements violations, including housekeeping violations (291 citations), followed by 122 citations for clean and dry floors and 53 citations for walkways free from hazards.

The second-most common citation was for failure to protect against fall hazards along unprotected sides or edges that are at least four feet above a lower level, including:

  • 205 citations for unprotected sides and edges
  • 55 citations for fall protection stairways
  • 49 citations for falls – holes
  • 26 citations for falls around dangerous equipment

The takeaway

OSHA continues to police slip, trip and fall violations with gusto. Based on the statistics, you should make sure to keep work areas and floors clear of obstructions and slip and fall risks.

You should also make sure you have protections in place to avoid any unprotected sides and edges.