OSHA Raises Maximum Penalties by 178%
The Occupational Safety and Health Administration (“OSHA”) has taken several actions in recent months that will significantly affect employers for years to come. First, it revised its Field Operations Manual by raising penalties to adjust for inflation for violations of the Occupational Safety and Health Act (“Act”). The higher penalties took effect on August 2, 2016 for violations that occurred after November 2, 2015. The following table shows the effects of these adjustments:
|Type of Violation||Old Maximum Penalty||New Maximum Penalty|
|$7,000 per violation||$12,471 per violation|
|Failure to Abate||$7,000 per day beyond the abatement date||$12,471 per day beyond the abatement date|
|Willful or Repeated||$70,000 per violation||$124,709 per violation|
Electronic Reporting of Work-Related Injury Data to OSHA Begins in 2017
Second, OSHA revised the rule that already imposes recordkeeping obligations on employers to report more serious work-related injuries and occupational diseases to the agency. 29 C.F.R. part 1904 . The revised rule requires employers with 250 or more employees at an establishment to submit injury and illness data electronically to OSHA annually from their Forms 300, 300A, and 301. They also direct employers with establishments employing at least 20 but fewer than 250 employees, in certain high-risk industries, to submit information from their Form 300A to OSHA yearly. Finally, the final rule requires employers upon notification to supply information electronically from Forms 300, 300A, and 301 to OSHA or its designee.
Larger employers with establishments employing 250 or more workers must submit information from their 2016 Form 300A by July 1, 2017. The new rule further directs these employers to provide information from all 2017 forms (300A, 300, and 301) by July 1, 2018. Similarly, smaller employers with establishments employing between 20 and 249 workers in certain high risk industries must submit information from their 2016 Form 300A by July 1, 2017 and their 2017 Form 300A by July 1, 2018. After 2018, employers must supply the information required by the new rule electronically by March 2.
After removing any personal identifying information from the data, OSHA plans to keep such workplace injury and disease data in a web-based searchable database. It will allow any interested parties to access and to use the data. For example, job applicants could compare one employer’s injury and illness rates to those of another. In addition, OSHA will access and analyze the data to identify employers with higher than normal injury and illness rates to investigate such employers.
OSHA Significantly Fortifies Anti-Discrimination and Anti-Retaliation Duties
Third, the new rule expands the scope of retaliation claims. The Act specifically prohibits any person from either discharging or discriminating against any employee, because she has filed a complaint with OSHA, testified in any proceeding related to the Act, or exercised any right that the Act affords. 29 U.S.C. sec. 660(c) . The new rule addresses its anti-retaliation obligations in the context of employees reporting work-related injuries or illnesses to their employers. First, it obliges employers to tell employees of their right to report occupational injuries and illnesses without suffering any retaliation for doing so. The old rule merely directed employers to advise their employees as to how to report occupational injuries and diseases. Second, the new rule requires employers to have a reasonable reporting procedure for work-related injuries and diseases without any obstacles or deterrents that discourage employees from reporting them. The prior rule obligated employers to have a reporting procedure, but OSHA views the new rule as an improvement, because some reporting procedures discouraged employees from reporting their injuries, especially where symptoms took time to develop and the procedures required the immediate reporting of an injury. Third, it bans employers from retaliating against employees that report occupational injuries or illnesses. OSHA considers the new rule’s anti-retaliation provision an improvement over the Act’s similar provision, because it both requires no specific employee to initiate a complaint to OSHA and expands the time period for the bringing of a retaliation claim from the Act’s 30 days from the date of the retaliatory act to six months from OSHA’s inspection date. The new rule’s anti-retaliation provisions take effect on November 1, 2016.
The comments to the new rule offer some insight into OSHA’s thinking about its application to some frequently occurring fact patterns. For example, they address automatic post-injury drug testing policies that many employers have. Employers adopt these policies to enable them to invoke a provision in many states’ workers’ compensation laws that allow a reduction of an injured worker’s total temporary disability benefits if her drug test produces a positive result. OSHA found that drug testing may deter employees from reporting work-related injuries. Rather than prohibiting all post-injury drug testing, however, it advised employers to limit such drug testing to situations involving a reasonable possibility that the reporting employee’s drug use contributed to the causes of the reported injury. Specifically, OSHA listed the following examples of unreasonable situations in which to require a reporting employee to submit to a post-injury drug test: bee stings, repetitive strain injuries, or injuries caused by a lack of machine guarding or a tool malfunction. Thus, to avoid an OSHA retaliation claim, an employer must limit the use of post-injury drug testing to situations in which the reporting employee’s intoxication from drug use as shown by drug test results plausibly played a contributing factor in the causation of her injury.
OSHA also identified safety incentive programs as posing a significant risk of deterring employees from reporting work-related injuries. For example, programs that award prizes to all employees who have reported no work-related injuries during a particular period , such as calendar year. It, however, recognized that other types of programs, for instance, those that reward workers with cash or gifts for making safety recommendations have no similar deterrent effect on reporting work-related injuries. Consequently, employers must restrict their use of safety incentive programs to those with no direct tie to whether an employee reports an injury to the employer.
The new rule has significantly increased the anti-discrimination and anti-retaliation obligations of employers under the Act. They must rewrite their workplace injury and disease reporting policies and, in many cases, their drug testing policies immediately. Similarly, if employers have safety incentive programs, they must review them to identify any disincentives, whether intentional or unintentional, to reporting work-related injuries and diseases and, if necessary, revise them to eliminate the disincentives. In addition, employers must conduct employee training to explain to workers their right to report occupational injuries and diseases, how to do so, and the employer’s anti-retaliation policy.