OSHA Issues Final Electronic Recordkeeping Rule

On July 17, 2023, OSHA released its final rule expanding its electronic recordkeeping and reporting requirements. As expected, the rule largely mimics OSHA’s 2022 proposal and takes effect January 1, 2024. The rule requires establishments with 100 or more employees in certain high-hazard industries, i.e., industry classification, to electronically submit information from their Form 300 (Log), Form 301(Incident Report), and Form 300-A (Summary) annually. 

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Information About OSHA’s Free Safety and Health Consultation Service

Creating a strong safety culture in a business has many components. It requires the commitment and participation of the executive management team and all supervisory and non-supervisory employees throughout the organization. A critical part of accomplishing this requires conducting internal and/or third-party safety and health audits on a routine basis and whenever business needs otherwise dictate, e.g., after an injury or a near-miss incident. There are many benefits to having regular health and safety audits at your business, including increasing efficiency, avoiding legal risks, ensuring compliance with federal and state regulations, helping to keep insurance premiums low, and keeping workers out of danger. Doing so is also a clear sign to employees that the business is prepared to dedicate resources and time to ensure their safety and health is not just a lip service type issue. OSHA generally recommends that all employers conduct regular safety audits at least once a year and, in some situations, may impose fines on companies that fail to have them as a regulatory compliance matter. 

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Wildfire Smoke Exposure: What are an Employer’s Obligations?

When it became apparent yesterday that the wildfire smoke cascading throughout parts of the Northeastern United States was having a serious health effect on anyone outside and exposed to the harmful particulates contained in such smoke, certain outside activities were simply canceled, such as the major league baseball games in Philadelphia and New York City. But what if your business cannot simply give everyone the day off and you are concerned about your legal obligations to your employees, especially if their outside work is exposing them to potential adverse health effects?

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The Interplay Between Ted Lasso and OSHA

WARNING: Spoiler alert! STOP reading now if you do not want to read spoilers which are used as examples to illustrate points in the blog article.

As viewers know, Ted Lasso is a feel good show about an American college football coach who is hired to coach AFC Richmond, an English soccer team. On its face, one might wonder how Ted Lasso relates at all to OSHA but as we follow Ted through his journey, it raises some interesting OSHA considerations.

Mental illness. During an important soccer match, Ted leaves the game and fails to return. At first, he tells everyone he left due to a stomachache. Later we learn that Ted’s abrupt departure was due to a serious panic attack. During the scene, it is clear that the high-pressure game conditions are at least, in part, what triggers the panic attack. However, we also discover that Ted is going through, like all of us, his own personal struggles which include coping with the suicide of his father, an ongoing divorce and being separated from his son in the United States while coaching in London.

The first issue is whether the panic attack is recordable as an illness which requires inquiry into distinct issues. Under OSHA’s recordkeeping rule, an injury/illness must meet general recording criteria to be recordable, i.e., it must result in death, days away from work, restricted work or transfer to another job, medical treatment beyond first aid or loss of consciousness. The episode does not provide us enough information to determine whether Ted’s panic attack resulted in days away from work but OSHA states “restricted work” occurs when as a result of a work-related illness, an employer keeps the employee from performing one or more of the routine functions of his job or from working the full workday that he otherwise would have been scheduled to work. Here, Ted ran off himself as opposed to his employer restricting his work so the definition does not apply.

In addition, OSHA’s recordkeeping rule specifically addresses mental illness. The rule states mental illness will not be considered work-related unless the employee voluntarily provides the employer with an opinion from a physician or other licensed health care professional with appropriate training and experience stating that the employee has a mental illness that is work-related. For this reason, Ted’s panic attack would not be recordable under the facts provided. 29 C.F.R. § 1904.5(b)(2). Indeed, OSHA has issued the following Q&A:

Q: An employee comes in to work and they are extremely distraught and stressed due to personal matters outside of work. While at work, the employee has an anxiety attack and faints. Would this be considered an OSHA recordable?
A: Injuries and illnesses that result solely from non-work related events or exposures are not recordable under the exception at 1904.5(b)(2)(ii). Mental illnesses, such as anxiety disorder are recordable only if the employee voluntarily provides the employer with an opinion from a physician or other licensed health care professional with appropriate training and experience (psychiatrist, psychologist, psychiatric nurse practitioner, etc.) stating that the employee has a mental illness that is work-related, and the case meets one or more of the general recording criteria.

Here, it seems unlikely through the counseling sessions we watch that the Team’s psychologist, Sharon Fieldstone, would agree that the panic attack was work-related. What if instead of a panic attack, Ted had a heart attack which resulted in hospitalization? The following Q&A would be instructive on this analysis:

Q: An employee died of a heart attack during working hours. He died while sitting on the lobby talking with a co-worker. The employee has a history of hypertension and high blood pressure. Is this case recordable?
A: If the case is wholly caused by non-work factors, then it is not work-related and will not be recorded in the OSHA records. If work contributed to the illness in some way, for example, the work is strenuous or the work environment is very hot, then it would be work-related and recordable.

This analysis is a tougher call. Although we learn about Ted’s personal struggles, it is also clear from the scene that the high stress game conditions seemed to contribute, in some part, to the hypothetical heart attack making it more likely than not that it is a recordable event.

Workplace Violence. In the show, Roy is a hard-nosed coach for the Team who has a temper. There are different scenes where Roy physically attacks team members. For example, in one episode Roy head butt’s Jamie after a win because he [Jamie] told Keeley that he still loved her. Of course, Roy did it so he could then hug Jamie to celebrate. If Jamie’s injury from the head butt meets the general recordkeeping criteria, e.g., an injury requiring medical treatment beyond first aid, would it need to be recorded? Yes, the general rule is that all injuries occurring to employees on the employer’s premises and/or during work hours are presumed to be work-related including but not limited to fist fights and similar workplace violence incidents. See August 18, 1993 Standard Interpretation (fist fight occurring during work is recordable if it results in days away from work).

Off-Site Injuries & Illnesses. There is a scene where Ted takes the Team to visit the sewers of London to learn a lesson about letting “smelly” things go. During the scene, players can be seen holding their noses and acting nauseous which certainly makes sense. Although no one appears to actually get sick, what if one of the players did get ill from breathing in the sewage fumes? Would the illness be recordable? Again, if the illness meets the general recording criteria, it is well established that injuries and illness would be recordable even if they occurred away from the employer’s establishment if the employee is engaged in work activities in the interest of the employer. Here, the players were all instructed to go to the sewer by Ted as a coaching exercise so clearly they were there in the interest of the employer and such an illness would be recordable.

However, what if the Team was asked by Ted to participate in a charitable activity on a voluntary basis and a team member was injured at the event, would this be recordable? Here, as long as the charitable event was completely voluntary, it would not be recordable. See October 5, 2020 Standard Interpretation stating that injuries that result solely from voluntary participation in recreational activities are generally not considered work-related. The interpretation does caution that if the activities are not purely voluntary or are conducted at the direction of the employer, it would be considered work-related. Knowing how persuasive Ted can be particularly over his team members, there would likely be some fact issues to explore before this determination can be made.

Jurisdiction. Does OSHA have jurisdiction to enforce standards for employees working abroad? In the show, Ted is hired by and works for an English soccer team, so clearly OSHA would have no jurisdiction. What if Ted worked for an American soccer team but was working abroad? The answer remains the same as OSHA’s jurisdiction is limited to the geographic coverage in the United States and its territories.

As another twist, let’s assume Ted Lasso was set in the United States. Would OSHA have jurisdiction to regulate the safety and health of the soccer team, i.e., does OSHA enforce standards in professional sports? A September 12, 2008 Standard Interpretation addressed this issue in the professional baseball setting and opined that the issue turns on whether professional baseball players are considered independent contractors or employees. In the interpretation, OSHA essentially punted by saying this determination must be made on a case-by-case basis after considering all of the circumstances affecting the relationship between the teams and their players and applying the common law factors. However, OSHA also stated that “in most cases,” OSHA does not take enforcement action with regard to professional athletes. Given that professional baseball players and all the other major sports in the United States are unionized, there is little doubt that the players are legally employees. However, to date, OSHA has consistently stayed away from regulating professional sports. There are certainly stakeholders that continue to argue OSHA should though.

Go AFC Richmond!

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A Brief Refresher on OSHA’s Emergency Action Plan Standard

Sadly, tragic workplace violence incidents continue to plague the country. Although it is unlikely that OSHA, in the foreseeable future, will engage in rulemaking for a general industry workplace violence rule, it has already taken affirmative steps to move forward on rulemaking for a workplace violence standard in the healthcare and social assistance industry.
However, almost every business is required to have an emergency action plan (“EAP”) which is designed to facilitate and organize employer and employee actions during workplace emergencies. If fire extinguishers are required or provided in the workplace, and if anyone will be evacuated during a fire or other emergency, then OSHA generally requires the business to have an EAP with limited exemptions.
As a reminder, an EAP must be in writing, kept in the workplace and available to employees for review although an employer with 10 or few employees may communicate the plan orally to employees. At minimum, an EAP must include: (1) procedures for reporting a fire or other emergency; (2) procedures for emergency evacuation, including type of evacuation and exit route assignments; (3) procedures to be followed by employees who remain to operate critical plan operations before they evacuate; (4) procedures to account for all employees after evacuation; (5) procedures to be followed by employees performing resource or medical duties; and (6) the name or job title of every employee who may be contacted by employees who need more information about the plan or an explanation of their duties under the plan. 29 C.F.R. § 1910.38(c).
The rule also requires employers to review the EAP with each employee covered by the plan (1) when it is developed or the employee is initially assigned to do a job; (2) when the employee’s responsibilities under the plan change; or (3) when the plan is changed. 29 C.F.R. § 1910.38(f).
As OSHA states, a properly developed EAP and employee training will help ensure fewer and less severe employee injuries and less structural damage to the facility during emergencies. To assist employers in developing an appropriate EAP, OSHA has published an Etool which can be found at https://www.osha.gov/etools/evacuation-plans-procedures/eap.

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Fifth Circuit to Review OSHA’s Unpreventable Employee Misconduct Defense

Unpreventable employee misconduct is an affirmative defense commonly asserted to OSHA citations. To generally prevail on this defense, an employer must show that it 1) established work rules designed to prevent the violative conditions from occurring; 2) adequately communicated those rules to its employees; 3) took steps to discover the violations of those rules and 4) effectively enforced the rules when violations were discovered. As an affirmative defense, the employer has the burden of proof.

In October of 2022, the Occupational Safety and Health Review Commission affirmed two serious violations against a contractor and rejected the unpreventable employee misconduct defense. In the underlying ALJ decision, the court found that the employer had established in its Safety Manual adequate work rules to implement the requirements of the cited standards and that it had effectively communicated its work rules to its employees through meetings, training, and the Safety Manual. The court opined that the communication of work rules can be adequate without being documented.

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Get Ready For More OSHA Inspections, Citations, and Greater Penalties

As we head into 2023, employers can expect to see more aggressive OSHA enforcement. BNA reported that the number of OSHA inspectors grew 19% in the fiscal year 2022. This was not surprising given the significant increase to OSHA’s FY 2021 budget, which earmarked funds to hire new OSHA inspectors. Moreover, the Biden administration has requested 701 million for OSHA in the fiscal year 2023, which is approximately $89 million more than OSHA received in 2022, so increased hiring and more frequent inspections are likely to continue past 2023. 

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A Reminder of the March 2nd Deadline to Electronically Submit OSHA 300A and OSHA Penalty Increase Update

As a reminder to covered establishments, they must electronically submit their Form 300A on or before March 2, 2023, which can be done here. Covered establishments generally include 250 or more employees or 20-249 employees in certain high-risk industries identified by OSHA. OSHA has publicly announced that it has been developing an analytic approach to identify non-responders from the previous calendar year’s data collection process, so we fully expect to see more aggressive enforcement against non-responders this year.

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Give Your Employees the Gift of Safety This Holiday Season: A Q&A With Safety Expert Curtis Chambers

As we head into the holiday gift giving season, it is a great time for businesses to think about employee safety and health and how they can strengthen their safety culture. Providing adequate supervisory and employee safety training is one of the most effective ways to ensure that employers are fostering a strong safety culture and identifying and minimizing hazards in the workplace. Doing so will not only help ensure employers are complying with their general duty obligations under OSHA and applicable training obligations but also provide employees the tools necessary to take ownership for safety and health. As the types of training required and/or recommended will depend on the specific work environment and thus may change because of factors such as employee retention, new legal obligations or operational changes, employers would be prudent to consider these issues now so they can effectively plan for them in the new year. To help employers consider these important issues, we are delighted to sit down with Curtis Chambers, from OSHA Training Services, Inc. to discuss safety and health training.

Q. Hi Curtis. Thanks for making some time to speak with us today. Can you tell us a little about yourself and your Company?
A. Thank you for this opportunity to chat, John. As our company name implies, OSHA Training Services focuses primarily on delivering training to employers and workers on topics required by the Occupational Safety and Health Administration, or OSHA. So, our services and products are skewed to that aspect of safety training, and not so much on non-mandatory topics. The company was established in 2011, and we have provided on-site OSHA training for employers located in all 50 states and several U.S. territories. We also provide numerous online OSHA training courses and other safety training resources, many of them free, via our website.
As for myself, I am a board-certified safety professional (CSP) with a master’s degree in occupational safety and health. I have been heavily involved in delivering occupational safety and health-related services for about 35 years, including providing training for clients in private industry and the public sector, conducting site inspections and evaluations, and acting as an expert witness in matters related to OSHA citations, work-related injuries and illnesses, and worker fatalities.
Q. Thank you. Could you share with us any ideas on how a business should go about determining what type of safety and health training it needs and how often it needs to provide such training?
A. Wouldn’t it be nice if the OSHA standards provided a list of all the training required for affected workers in all occupations? Unfortunately, such a thing does not exist in the OSHA regulations. So, employers typically have to resort to sifting through the thousands of pages of OSHA standards to identify specific training requirements that apply to their operations.
To simplify the process for employers to identify applicable training requirements, we sorted through all federal OSHA regulations for general industry, construction, and administrative standards, and plucked out what we believe to be the individual OSHA standards that make reference to “training” which must be provided to affected workers and/or supervisors, either on a one-time or recurring basis. Then we sorted them by section and listed them on our website (see them at https://oshatraining.com/more-osha-training-resources/osha-training-requirements/). We also incorporated the many OSHA standards that include key words and phrases that refer to individuals who are “certified,” “qualified”, or “a competent person”, all which imply the subject has received some level of special training.
Q. That’s a terrific resource. Thanks for sharing that. Is there a difference between supervisor and non-supervisor training?
A. It depends. That is because most OSHA standards are performance based, meaning they list the requirements for training that you (the employer) must provide to all affected employees, regardless of their position in the company. For example, the OSHA hazard communication standard specifies the training and information that must be provided to any and all workers exposed to hazardous chemicals. That training and information is the same for any worker or supervisor exposed to those chemicals. And if someone operates a forklift (referred to in OSHA standards as a powered industrial truck), the training an operator must be provided is the same for everyone, regardless of whether or not they are a supervisor.
But there do exist a few OSHA standards where the content of training required could depend on the affected person’s position. For example, OSHA’s confined space entry standards lists the duties for workers who enter into permit-required confined spaces, as well as the duties for entry attendants. They also list additional duties for entry supervisors. OSHA requires that all of these employees be provided with training necessary to “establish proficiency in their duties”, which for entry supervisors would include training on topics (such as how to fill out an entry permit) beyond what an entrant or attendant would normally need.
Q. That’s very helpful although you are starting to sound like a lawyer with the “it depends” answer. Obviously, businesses have different resource levels – for a smaller business, is there way to watch the budget while at the same time still making sure necessary and appropriate training is done. For example, can safety training be done on-line?
A. Some employers may not be aware that many workers’ comp insurance providers provide free or low-cost safety training for their policy holders, or have funds they can allot for that purpose. Also many industry groups and associations also offer free or low-cost training services or resources to their members.
As for online OSHA training, it can be a very cost-effective option for employers and individuals, especially when training is needed for just one, or a few, employees. However, many online training courses that claim to “meet OSHA regulations” are actually too general in nature to meet OSHA training requirements; in actuality many are nothing more than awareness level training courses. For example, our online confined space entry training courses range between six and a half to eight hours in length, depending on the level of training needed, but there is a plethora of online courses for confined space entry advertised on the internet as “OSHA compliant” that are only one or two hours long.
Q. Excellent information. What types of common mistakes do you see made during safety training?
A. About 50 things immediately pop up in my mind when I hear that question. In fact, I could probably write a book on the subject. But to answer your question, one of the most common mistakes I see is where someone provides their employees with generic training on some topic, be it through a trainer in a live class, by showing a safety training video, or by having them take an online class. In some cases, that training alone may be all that’s needed to comply with a certain part of the OSHA training standards; for example, having everyone watch a generic video explaining the hazards associated with excessive noise in the workplace.
But in many cases, generic training needs to be supplemented by the employer with additional training for workers on the organization’s site-specific policies and procedures. For example, a generic video or online course about emergency action plans may alert the student about the need to evacuate to their company’s designated assembly area when they hear an evacuation alarm. But someone at the site still needs to follow up with the trainee afterwards to tell them where the assembly area is located, and what the alarm sounds like. Also, there may need to be some additional hands-on training provided to the worker on topics such as how to don and adjust certain types of personal protective equipment, or how to operate the actual controls a particular brand or model of forklift.
The second most common mistake I see is a pet peeve of mine. It is when the company will hold a safety meeting on a topic that affects everyone, but only the line workers will attend, while the supervisors and managers go sit in their offices to catch up on their emails or paperwork. Not only does that send a bad message about the importance of safety training to the workers, it’s also kind of hard for someone to supervise or manage workers to make sure they comply with the training provided when the supervisors and managers themselves have not had that training.
And briefly, a third mistake I commonly see is when a company hires a new employee, gives him/her a quick orientation so they can get them started to work, with a plan to provide them with more in-depth, formal training at a later time. If an employee in the workplace has exposure to hazards that require safety training, all of that training applicable to their job, and not just a part of it, must be provided to them before they are turned loose in the workplace.
Q. I think I see a future webinar in the making. Is there such a thing as OSHA certified training and if so, what does that mean?
A. “OSHA certification” is one of the greatest myths out there. You will hear many people state, incorrectly, that “I am an OSHA certified forklift driver,” or “Our employees all have their OSHA confined space certifications.” In fact, OSHA does not “certify” forklift operators or confined space entrants, nor do they “certify” anyone else for anything else. The misuse of this term, which is ingrained in the vernacular of the safety training industry, stems from the requirement in some OSHA standards that employers “certify” that an employee has been provided with training on a specific topic by having the trainer prepare a “training certification” that lists the name of the student, the name of the trainer, the date the training was provided, and the topic covered in the training. In other words, just a formal way to document training was provided to a worker.
Q. Definitely a buyer beware situation. Should employers always retrain after an accident or maybe even a near miss?
A. It is certainly a good idea to provide retraining to affected workers any time they are involved in an accident or near miss. But refresher training is actually not mandated in most OSHA standards. However, there are a handful of OSHA standards that actually require such follow-up training in certain instances. For example, in the federal OSHA standards for powered industrial truck operator training, OSHA states that refresher training in relevant topics be provided to an operator any time they have been involved in an accident or near-miss incident, observed to operate the vehicle in an unsafe manner, assigned to drive a different type of forklift, or there is a change in workplace that could affect safe operation of the forklift; for example, a new type of forklift is introduced into the workplace, or, a ramp for forklifts to use is constructed at the site when none had been present before. Additional training in relevant topics is also necessary should the forklift operator is found not to be operating the forklift safely during their performance evaluation, which must be performed every three years.
Q. Helpful. Sounds like in most instances, it’s more of a best practice than absolute legal requirement. Should employers be documenting all training?
A. That’s a great question, especially coming from an attorney. I say that because I’ve been in depositions and trials where the opposing attorney says that lack of documentation means you did not train your workers (even though I know for a fact that they were trained), and I’ve had also opposing attorneys say that just because someone’s name is on a sign-in sheet, that does not prove they were actually in the class!
As for what OSHA says about this subject, there are a few federal OSHA regulations, usually the relatively newer ones, that do specifically require employers to document employee training, typically through the “training certification” requirements discussed earlier. However, the vast majority of OSHA standards that require employee training do not mandate that the training be documented.
Now, to your question of “should” an employer document all employee training? Generally, I say yes. That is because without documentation, it might be difficult for the employer to identify workers who did not attend the safety meeting they provided because the worker was on sick leave or vacation (or hiding in the restroom).
But let me finish up on this topic with a warning for employers who do choose to document all training, even when it is not required. I have seen employers who use training sign-in sheets to demonstrate to OSHA inspectors that a particular worker was trained. But the absence of a name for a particular employee on a sign-in sheet could also be used against you as evidence that employee was not provided with the training, even if you know they were there. And that can be a big problem, especially if the missing name just so happens to be for an employee who was involved in an accident or got injured.
So, if you decide to document all safety training, even if documentation is not required by OSHA, be religious about making certain that all attendees sign in at safety meetings every time. And then, be just as diligent about making certain to identify any no-shows at the training session so you can get them trained in a follow up session as soon as possible.
Q. Absolutely. I definitely have some of my own war stories on this issue. You have shared some terrific thoughts and we appreciate your time. If someone wants to reach out to you to discuss safety and health training, how can you be reached?
A. I can be reached via the toll-free number at our corporate office (877-771-6742), or through the contact form on our website (https://www.oshatraining.com).
Q. Do you have any final thoughts to share on safety and health training for our readers?
A. Preventing someone from suffering an injury or illness should be motivation enough for employers to provide their employees with good safety training. But there are monetary reasons as well that affect the bottom line so to speak. Some of the largest monetary penalties issued by OSHA are related to lack of required training for employees. And some of the largest monetary damages awarded to plaintiffs in work-related accidents and injuries are directly related to the lack of training for the worker or workers involved. So, do not wait until after you are inspected by OSHA, or have someone seriously injured or killed, to begin focusing on safety and health training for your workers. Treat safety training with the same sense of importance that you place on controlling costs, quality, production, and all other important aspects of your business.

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Can an employer prevent a Section 11(c) whistleblower from getting double damages in a settlement agreement and release of a related claim? Maybe.

In a recent decision in the Eastern District of New York, Walsh v. Community Health Center of Richmond, Inc., et al., 21-CV-3094 (ARR)(TAM), the court held that OSHA has the right to pursue individual damages for a Complainant under Section 11(c) even though a prior federal action brought by the Complainant against her employer raising the same whistleblower allegations under New York Labor Law (“NYLL”) § 740, which protects employee-whistleblower, was dismissed with prejudice. The Complainant sued her employer directly in the prior federal lawsuit alleging, among other things, that her termination violated OSHA’s General Duty Clause. During the course of the litigation, the Complainant filed a voluntary stipulation dismissing her NYLL § 740 claims with prejudice. It should be noted that the court there recognized that Section 11(c) of OSHA does not have a private right of action.

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