OUT IN FRONT

OSHA Update: A Discussion About Two New Game-

Changing Rule Changes Effective January 1, 2015

And a “Stealth Rule” expected to be effective March 1, 2015

Presented by:John D. Surma and Collin G. Warren

Adams and Reese LLPOctober 16, 2014

Reporting v. Recording

• Reporting is the act of contacting OSHA after an incident that triggers that obligation (i.e., when an employee dies on the job).

• Recording is the act of completing the OSHA Log (300, 300A, and 301).

Both Reporting and Recording Rules are changing effective

January 1, 2015.

• Current Reporting Rules:– Employer must report within 8 hours the

death of an employee (subject to certain limited exceptions)

– Employer must report the hospitalization of 3 or more employees within 8 hours (subject to certain limited exceptions).

– Reporting can be done in-person or by calling OSHA’s “800-number.”

• Reporting Rules effective 01/01/15:– Employer still must report within 8 hours the

death of an employee (subject to certain limited exceptions)

– Employer must report the hospitalization for more than observation of 1 or more employees within 24 hours (subject to certain limited exceptions).

– Employer must report amputations or eye losses within 24 hours.

• Impact of New Reporting Rules:– Far more incidents are going to be reported to

OSHA.

– Far more employers will be subject to possible inspection.

Without an increase in the size of OSHA, the total number of inspections cannot increase dramatically.

– OSHA will be able to target high-frequency industries.

– A certain ambiguity over definition of amputation.

• Current Recordkeeping Rules:– Employers with ten (10) or fewer employees are

exempted.

– Employers with Standard Industrial Classification (SIC) that have a DART (Days Away, Restriction, or Transfer rate) of 2.325 are exempted.

– Employers required to keep records are required to maintain them in paper and post them from February 1, through April 30, every year.

• Recordkeeping Rules effective 01/01/15:– Employers with ten (10) or fewer employees

are still exempted.

– Employers with NAICS codes that have a DART of 1.5 are exempted (thousands of employers who never compiled injury and illness data now will have to).

– Employers will submit records electronically.

• Impact of new recordkeeping rules:– Thousands of workplaces that didn’t have to

keep records now will.

– Records will be available online in searchable format.

– The maintenance of records in electronic format will permit OSHA to target employers who experience certain types of illnesses and injuries.

Stealth Changes within a Second

Set of Electronic Reporting Rules

• OSHA has proposed another recordkeeping rule that would require employers with more than 250 employees to report serious injury and illness data quarterly.

• Tucked into this proposed rule, which is also expected to go into effect January and be implemented by March, 2015, will be new Whistleblower protections.

• Section 11(C) of the Occupational Health and Safety Act is the so-called Whistleblower section of the Act that protects employees who report a safety concern.

• Traditionally, whistleblowers were those employees who reported an unsafe working condition, be it to the employer, OSHA, or some other entity.

• Under this proposal, an employee reporting a job-related illness or injury would be considered a Section 11(C) Whistleblower.

• This proposal, which is almost certain to go into effect, will also prohibit a number of very common work practices.

• Prohibited Actions will include:– Mandatory drug testing every time an

employee reports an injury (unless there is a reason to suspect drug use).

– Demanding that employees report illnesses and injuries within a certain time after being injured or becoming ill.

– Requiring employees report injuries and illnesses in-person to someone at a distant location.

• Prohibited Actions will include:– Terminating employees who are injured because

they failed to abide by the employer’s safety rules.

– Disciplining employees who report injuries or illnesses or terminating employees who have more than X injuries.

– Enforcing vague safety rules like “situational awareness” and “work carefully” only after an employee is injured.

– “Repeat Offender” programs.

• Impact of these changes:– Violations of Section 11(C) involve much bigger

penalties, back pay, removal of negative comments in employment files, and reinstatement, among others.

– Employers will have to develop new management styles and strategies to reduce and eliminate on-the-job injuries.

– Contractual language that is common now (mandatory drug testing) will need revision.

The contents of this presentation are intended for general information purposes only. Application of the information reported herein to particular facts or circumstances should be analyzed by legal counsel.

Adams and Reese LLP is a registered limited liability partnership. Neither the firm nor the presenters assume liability for the use or interpretation of information contained herein.

John D. SurmaAdams and Reese LLPLyondellBassell Tower1221 McKinney, Suite 4400Houston, TX 77010Tel: 713.652.5151 Fax: 713.652.5152 john.surma@arlaw.com

Collin G. WarrenAdams and Reese LLPLyondellBassell Tower1221 McKinney, Suite 4400Houston, TX 77010Tel: 713.652.5151 Fax: 713.652.5152 collin.warren@arlaw.com