An In-Depth Look at OSHA’s Attempts at Electronic Recordkeeping and More

As 2018 moves along, so do things at the Department of Labor – but still pretty slowly. The president’s nominated-but-still-unconfirmed candidates to lead the department’s agencies continue to languish in the Senate, and the “acting” heads are reticent to take any significant steps toward change. Here is the latest as of the end of October.

Electronic Recordkeeping Rule

Probably the biggest news of the summer and early fall was the Occupational Safety and Health Administration’s (OSHA) July publication of an anti-climactic Notice of Proposed Rulemaking (NPRM) to amend its electronic recordkeeping (really electronic injury data reporting) rule and its October publication of a memorandum reversing its position on post-incident drug testing and safety incentive programs as retaliatory under the rule.

All the agency proposed in the NPRM was to eliminate the obligation of employers with larger establishments to report electronically their 300 Log and Form 301 data, in addition to their Form 300A (Annual Summary) data. In sum:

What would change?

• Employers with 250 or more employees in a single establishment no longer would need to e-file their 300 Logs or Forms 301, but still would have to e-file their 300A summaries annually. The reason offered by OSHA is that collection of the 300 and 301 logs “adds uncertain enforcement benefits, while significantly increasing the risk to worker privacy.”

• Employers would have to submit their EINs when e-filing their Forms 300A to “reduce or eliminate duplicative reporting.” OSHA points out that BLS data collection surveys already require this information, suggesting that the additional requirement is no big deal

What would not change?

•Employers with 20-249 employees in designated industries still would e-file their Forms 300A annually.

• In the NPRM, OSHA makes no comment on its interpretation that the rule allows the agency to issue citations for employee whistleblower discrimination or retaliation, without an employee who has complained and without regard for OSH Act Section 11(c)’s requirement that whistleblower complaints be filed by a complainant within 30 days of an adverse action.

Comments on the NPRM were due to OSHA on or before Sept 25.

While the regulated employer community thought OSHA had missed its opportunity in the NPRM to walk back or at least to modify the agency’s positions on post-incident drug testing and safety incentive programs as retaliatory, all were surprised on Oct. 11 when OSHA issued a memorandum to its field personnel essentially doing a 180 on both positions.

“The purpose of this memorandum,” OSHA said, “is to clarify the Department’s position that (the retaliation provision of the rule) does not prohibit workplace safety incentive programs or post- incident drug testing.”

In the preamble to its final rule, OSHA had taken the position that post-accident testing policies/testing might violate 29 C.F.R. § 1904.35(b)(1)(i) (“You must establish a reasonable procedure for employees to report work related injuries and illnesses promptly and accurately. A procedure is not reasonable if it would deter or discourage a reasonable employee from accurately reporting a workplace injury or illness.”); or 29 C.F.R. §1904.36 (“In addition to [29 C.F.R.] §1904.35, section 11(c) of the OSH Act also prohibits you from discriminating against an employee for reporting a work-related fatality, injury, or illness…”). In the Oct. 11 memorandum, OSHA reversed itself and said, among other things:

With respect to safety incentive programs (emphasis added):

• “One type of incentive program rewards workers for reporting near-misses or hazards, and encourages involvement in a safety and health management system. Positive action taken under this type of program is always permissible under [the Rule].”

• “Another type of incentive program is rate-based and focuses on reducing the number of reported injuries and illnesses. This type of program typically rewards employees with a prize or bonus at the end of an injury-free month or evaluates managers based on their work unit’s lack of injuries. Rate-based incentive programs are also permissible … as long as they are not implemented in a manner that discourages reporting. Thus, if an employer takes a negative action against an employee under a rate-based incentive program, such as withholding a prize or bonus because of a reported injury, OSHA would not cite the employer under [the rule] as long as the employer has implemented adequate precautions to ensure that employees feel free to report an injury or illness.”

• “An employer could avoid any inadvertent deterrent effects of a rate-based incentive program by taking positive steps to create a workplace culture that emphasizes safety, not just rates. For example, any inadvertent deterrent effect of a rate-based incentive program on employee reporting would likely be counterbalanced if the employer also implements elements such as:

– An incentive program that rewards employees for identifying unsafe conditions in the workplace;
– A training program for all employees to reinforce reporting rights and responsibilities and emphasizes the employer’s non-retaliation policy; or
– A mechanism for accurately evaluating employees’ willingness to report injuries and illnesses.

With respect to post-incident drug testing:

• “… (M)ost instances of workplace drug testing are permissible under (the rule).”

• Examples of permissible drug testing include:

– Random drug testing.
– Drug testing unrelated to the reporting of a work-related injury or illness.
– Drug testing under a state workers’ compensation law.
– Drug testing under other federal law, such as a U.S. Department of Transportation rule.
– Drug testing to evaluate the root cause of a workplace incident that harmed or could have harmed employees.

(Non-)Confirmation of Scott Mugno as OSHA Chief

It is nearly certain that one of the reasons the electronic recordkeeping rule NPRM proposes to change as little as it does is that OSHA still is without a confirmed head. Scott Mugno remains the nominee, and the Senate remains focused on the confirmations first of judicial appointments. There has been a lot of talk over the last few months about Senate Republicans and Democrats agreeing on a “package” of nominees – a compromise – that both would agree to confirm by consent. It is conceivable that, by the time of publication, Mugno will have been confirmed. If that is the case, it is also nearly certain that the next year will see considerably more change at OSHA than we have seen since President Trump took office. If Mugno has not been confirmed, however, he likely will need to be renominated for the third time, we hope, by the next Congress … which will be after the mid-term elections.

Until then, dramatic policy change is unlikely. And that means the regional and area OSHA offices likely will maintain the status quo in enforcement, unless otherwise directed by things like the Oct. 11 memorandum on post-incident drug testing, safety incentive programs and the new SST program.

Suit against OSHA to produce data collected under the Electronic Recordkeeping Rule

In January, the public advocacy group Public Citizen sued OSHA in federal court in Washington over the agency’s refusal to produce, under the Freedom of Information Act, employer data that has been submitted under the electronic recordkeeping rule. Public Citizen has asked the court to order OSHA to produce all data submitted under the rule from Aug. 1 to Dec. 31. Such disclosure and misuse by third parties – competitors, unions, plaintiffs’ lawyers, etc. – of the data is one of the major reasons businesses objected to OSHA’s collection of injury and illness data in the first place. If the court rules in favor of Public Citizen, the push for an even more significant amendment of the rule is sure to grow.

The Relationship of More Funding with Posting Fatalities Online

On a bit of a related note, the Senate Appropriations Committee in June approved a bill that would increase OSHA’s funding by about 1 percent. In the bill, the committee also instructs OSHA to resume “timely” posting of work-related fatalities on its website, something the Trump Administration had stopped doing in mid-2017. It will interesting to see what kind of a reception that bill gets from the Senate as a whole.

Key Retirements at OSHA and SOL

Another development on the enforcement front is the retirement of OSHA’s chief of enforcement, Tom Galassi. Galassi, who retired in July, has been a stabilizing force during this period of uncertainty and, for a while, appeared to be the leading candidate for the position of career deputy assistant secretary. He served in the temporary position of deputy for a time early on in the Trump Administration, and many in business were surprised to see him replaced. It wasn’t until this summer that he announced his plan to retire. Who will replace him also is yet to be seen.

It is conceivable, however, that no successor will be named until a new assistant secretary for OSHA is confirmed. In the meantime, Galassi’s second-in-command, Patrick Kapust, will serve as acting director. Needless to say, for those on the compliance side of OSHA, the choice of his predecessor will be very important. The director of the construction enforcement has not changed. Dean McKenzie remains in that position.

At about the same time Galassi retired, so did OSHA Associate Solicitor of Labor Ann Rosenthal. For the past several years, Rosenthal has been responsible for leading OSHA’s litigation charge nationally, working with the solicitor of labor (the Department of Labor’s top lawyer) to set litigation policy in OSHA cases. Who will replace Rosenthal also is up in the air. The predecessor can make a significant difference to how OSHA approaches litigation nationally, what cases it chooses to press, what remedies it seeks, etc. So, we watch carefully.

By Eric Hobbs – Attorney, Ogletree, Deakins, Nash, Smoak & Stewart, P.C.

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