OSHA Rescinds Controversial E-Reporting Requirements

Agency also clears some dust on how to comply with its ‘silica rule’

The Occupational Safety and Health Administration had a busy January despite the partial government shutdown.

Last month OSHA made waves when it rescinded electronic reporting requirements that caused consternation among employers as well as employees. The agency also shed more light on how it will enforce its “silica rule,” which has been a tricky compliance task for employers in construction and other industries that work with stone and concrete.

Under the electronic record keeping rule OSHA introduced during the Obama administration, most employers with 250 or more employee shave been required to submit a variety of work-related injury and illness data to the agency. Effective Feb. 25, large employers will not have to submitForms 300 and 301, which together contain detailed reports of work-based incidents.

Large employers will still need to maintain those forms and produce them for OSHA, should the agency approach them for an inspection or enforcement action, but employers won’t be required to hand over that data on an annual basis. They will still need to submit Form 300A to OSHA, however, which contains a less detailed annual summary of work-related injuries and illnesses.

OSHA originally issued its Obama-era record keeping rule to help it identify employers with high rates of injury or illness and possibly followthrough with an investigation. But the rule saw pushback from employer and worker groups alike, who voiced concerns that the detailed information OSHA collected this way risked public disclosure. The data contained in Forms 300 and 301 can include descriptions of employees’ injuries and the body parts affected, as well as employee names and their medical treatments. That sensitive information could have been turned over to unions, plaintiff attorneys and media outlets that made Freedom ofInformation Act requests. OSHA cited worker privacy as one of the benefits of the new rule change.

Besides the privacy concerns, the300 and 301 forms posed a logistics challenge to employers that had to wrangle the detailed injury and illness information, said Pat Miller, a member at Sherman & Howard’s Denver office who assists employers with safety and health compliance. OSHA’s move to require only the summary information each year was reasonable,Miller added. “Limiting it to 300A is a sensible approach because you still get the basic information that the rule was designed to address.”

OSHA never got the chance to actually enforce the 300 and 301 requirement after it was finalized inMay 2016; it asked employers to hold off on submitting those forms while this rollback rule was in the pipeline. In the background section of the final rule, the agency notes that it has the targeting information it wants even without those forms. With the data from the 300A and severe injury reports, alone, “OSHA has already designed a targeted enforcement mechanism for industries experiencing higher rates of injuries and illnesses.”

Employers should note that OSHA left many of the original rule’s requirements intact, Miller said.“Your obligation [to submit] the 300A is still there, and they’re finding noncompliance by employers on that.”

But the rollback is already facing a legal challenge. A group of health and safety organizations, led by the Public Citizen Health Research Group, is suing OSHA claiming the agency by passed its rule making obligations under the Administrative ProcedureAct. In the complaint filed Jan. 25, the same day the final rule was published, the plaintiffs said OSHA “failed to provide a reasoned explanation for its change in position, failed to adequately consider comments submitted in opposition to the change, and relied on considerations that have no sound basis in law.”

Also in January, the agency handed down guidance on its ‘silica rule’ for general industry. In March 2016, OSHA proposed a rule to regulate workers’ exposure to respirable crystal line silica, and it became effective last June. Breathing in silica for prolonged periods can cause lung damage through a condition called silicosis, and workers who perform tasks like masonry or concrete drilling are at risk for health problems unless they mitigate the exposure.

OSHA set permissible exposure limits for employers in construction and those in general industry, and the FAQs it released Jan. 22 address the latter.

Employers very much needed the guidance, Miller said. “Silica is probably one of the more complicated [OSHA] standards that’s come down the pike in a lot of years.”

OSHA has provided a list of methods employers can use to control their workers’ exposure to silica when they perform specific construction tasks with specific tools. For example, workers using a jackhammer should also use a tool to continuously spray water on the point of impact, or use a tool that has a dust collection system.If employers follow the methods on these listings, known as Table 1, they don’t have to measure their workers’ exposure to silica and ensure it falls below the OSHA rule’s permissible exposure limits.

Table 1 is where employers need more guidance, Miller said. “While helpful, I think [the FAQs] leave a lot of questions unanswered,” Miller said. It’s yet unclear how OSHA will determine whether employers satisfied the Table 1 methods, and how deep the agency will dig when it inspects for that, he added. For example, many of the Table 1 methods simply say that workers should operate and maintain equipment “in accordance with manufacturer’s instructions,” but even that might be open to OSHA’s interpretation.

Miller noted that OSHA is in the process of adding more tasks to Table 1, and it’s likely the agency is waiting to do that before coming out with more guidance on Table 1 and construction standards on the silica rule.

In other OSHA news, effective Jan. 24 the agency raised the standard penalties it will impose on employers by nearly 5 percent. Fines for serious violations are now $13,260 — up from $12,675 in 2018 — and fines for willful and repeat violations are now $132,598, up from $126,749.

Overall, OSHA enforcement has been “pretty steady” under the Trump administration, Miller said, adding that regulatory rollback through that agency hasn’t been quite as swift or broad as industries might have expected.

Notably, OSHA is still without an appointed head and is operating under Acting Assistant Secretary of Labor Loren Sweatt. President Donald Trump has nominated Scott Mugno several times to lead OSHA dating back to fall 2017, with the Senate failing to confirm him. A Senate committee was scheduled to vote on Mugno’s confirmation Wednesday, but that vote was postponed without a new date given.

— Doug Chartier


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