The Occupational Safety and Health Administration (OSHA) published an interim final rule on July 1, 2016, that increases the maximum penalties for citations significantly. This is the first increase in OSHA penalties since 1990. Under a statue passed by Congress in 2015, federal agencies must adjust penalties based on the Consumer Price Index (CPI). Since the CPI has increased 78% since 1990, OSHA’s new penalties will increase by that amount. The new penalties take effect August 1, 2016. The following chart compares the existing and new penalties:
|Type of Violation||Current Maximum Penalty||New Maximum Penalty|
|$7,000 per violation||$12,471 per violation|
|Failure to Abate||$7,000 per day beyond abatement date||$12,471 per day beyond abatement date|
|Willful or Repeated||$70,000 per violation||$124,709 per violation|
The new penalties will apply to any citation issued on or after August 1, 2016, for any violation that occurred after November 2, 2015.
On May 12, 2016, OSHA published another final rule regarding the reporting of injuries and illnesses and protecting employees who make such reports. The new rule expands OSHA’s enforcement powers, requires employers to make disclosures to employees of their rights, and requires employers to submit information regarding injuries and illnesses to OSHA. Certain requirements take effect beginning August 10, 2016, and other requirements will phase in over the next two years.
Beginning August 10, 2016, all employers, regardless of size, must inform employees of their right to report work-related injuries and illnesses free from retaliation. OSHA has issued a poster that employers can use to meet this requirement. Employers must also ensure that any procedure for reporting work-related injuries and illnesses is reasonable. A policy will not be considered to be reasonable if it would “deter or discourage” a reasonable employee from accurately reporting a workplace injury or illness.
The new OSHA rule targets two common workplace safety policies: incentive programs and mandatory post-incident drug testing. OSHA will closely scrutinize incentive programs and will consider such programs retaliatory if they offer benefits to employees who do not report injuries and illnesses. OSHA will consider it unlawful if a company incentive program eliminates a group safety bonus if one employee in the group is injured. Programs that reward employees for correctly following legitimate safety rules or promote participation in safety trainings or investigations will not be considered to be retaliatory.
In its final rules, OSHA concluded that “blanket” post-injury drug testing deters proper reporting. The rule now prohibits mandatory post-accident drug testing except in situations where drug use by the affected employee is “likely to have contributed to the incident,” and for which a drug test can accurately identify impairment caused by the drug use. Post-incident drug testing will not be considered retaliatory if it is required by state law, such as workers’ compensation requirements. The new rule explains that drug tests would not be considered to be “reasonable” where an employee suffers a repetitive strain injury, or an injury caused by a lack of machine guarding or a machine or tool malfunction. Post-injury drug testing is mandatory under the Tennessee Drug Free Workplace Act (TDWA). Under the Tennessee Workers’ Compensation Act, a positive drug test following a workplace injury may be used by the employer as a defense. Please remember that participation in the TDWA is voluntary, and thus, an employer must enact a compliant drug and alcohol testing program under the TDWA to take advantage of the OSHA rules’ safe harbor provision.
The new rule also grants OSHA additional enforcement powers. The compliance officers performing an inspection will have the authority to issue citations for retaliation even if the employee has not filed a claim or otherwise reported to OSHA the alleged retaliation. Previously, OSHA had to wait for an employee to file such a complaint to commence an investigation into potential retaliation.
The rule also imposes new reporting requirements on employers. Current regulations require employers to make reports to OSHA only in the event of certain serious injuries such as amputations, fatalities or accidents requiring hospitalization. Most employers are only required to maintain injury and illness records on the OSHA Form 300 with supporting documentation. That information must be summarized annually on OSHA Form 300A and be posted at the workplace from February 1 through April 30.
Under the new rule, employers with 250 or more employees will be required to submit information to OSHA annually, and the information will be made available online. Summary information from the Form 300A must be submitted by July 1, 2017. More detailed information from all 2017 forms must be submitted by July 1, 2018. Beginning in 2019, and every year thereafter, the submission deadline will be March 2.
Establishments with 20 to 249 employees in certain industries which OSHA has deemed “high risk” will also have submission requirements. Those industries include all employers in agriculture, utilities, construction, manufacturing, department stores and nursing homes. Those establishments must submit summary information by July 1, 2017, and are required to submit summary information from the 2017 Form 300A by July 1, 2018.
Employers should immediately review their workplace policies and procedures. Tennessee employers who have not enacted a TDWA compliant policy should consider doing so. Tennessee employers who choose not to enact a TDWA compliant policy should amend their current drug testing policies to require testing only in situations in which the drug or alcohol use is likely to have contributed to the accident or injury, and when the test can accurately identify the impairment caused by the drug or alcohol use.
Similarly, safety incentive programs should be reviewed to ensure that they incentivize reports of injuries and illnesses and do not discourage employees from making such report.
To comply with the new reporting policies, employers should review the types of injuries and illnesses that will need to be reported. OSHA generally requires employers to report work-related injuries or illnesses, ones that involve a loss of consciousness, restricted work activity, or a job transfer, days away from work for medical treatment beyond first aid, or hearing loss.