esafetyline.comesafetyline.com/eei/conference s/2017spring...Author Victoria Ahmadi Created Date...

Jarrett Quoyle, Mastec

Steve Montgomery, CenterPoint Energy

Melissa Bailey, Ogletree Deakins

Recordkeeping

.

ogletreedeakins.com

EEI CONTRACTOR SUMMIT –

OSHA RECORDKEEPING Presented by: Melissa A. Bailey (Washington, D.C.)

[email protected]

202 887-0855

.

© 2016, Ogletree, Deakins, Nash, Smoak & Stewart, P.C.

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Agenda

Update on Amended Recordkeeping Rule

Electronic submission

Status of online portal

Will OSHA still post the data?

Status of challenge to anti-retaliation provisions: Safety

incentive programs and drug testing

Volks Repeal

Will any of it stand?

3





Update: Recordkeeping Amendments

On May 12, 2016, OSHA amended the Recordkeeping

regulation

Some employers required to electronically submit injury and

illness records to OSHA annually

Anti-retaliation provisions – potential impact on discipline,

post-accident drug testing and incentive programs

4





Recordkeeping Amendments

Employers with establishments of certain sizes must

submit injury and illness data electronically, including

OSHA 300 Logs and 301 forms

OSHA will post data on the internet

Because the data will be public, employers will look for

ways to deter employees from reporting injuries and

retaliate when they do

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Filing Dates

Beginning in 2019, reports due on March 2 of each year

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Online Portal Update

No online portal yet to submit

OSHA 300’s

OSHA missed internal

deadline to go live

First compliance deadline fast

approaching – 7/1/17

Will OSHA complete it?

7





Publication of OSHA 300 Data

Even if online portal is finished, does OSHA still plan to

publish data online for public view?

Final rule was clear agency would make data public

Statement confirming publication was recently

removed from website – is public “shaming” over?

What are the policy implications if OSHA abandons

project?

OSHA cannot use the data for enforcement

Loses opportunity to focus inspection resources

8





Anti-Retaliation Provisions

Section 1904.35(b)(1)(iv): Anti-Retaliation

Employers “must not discharge or in any manner discriminate

against any employee for reporting a work-related injury or illness”

January 2014: Public Hearings

“Prevalent concern” was creating “motivations for employers to

under-record injuries and illnesses, since each covered

establishment’s” data would be public

“Some employers already discourage employees” from reporting by

“disciplining or taking other action against employees” who are

injured

Blanket post-accident drug testing and safety incentive plans are

ways employers deter employees and engage in retaliation

9





Proof Scheme

OSHA’s proof scheme:

The employee reported** a work-related injury or illness;

The employer took adverse action against the employee

(that is, action that would deter a reasonable employee from

accurately reporting a work-related injury or illness); and

The employer took the adverse action because the employee

reported a work-related injury or illness

** Important implication: Employee doesn’t “report” it

(broken leg at work) – provision does not apply

10





Anti-Retaliation Provisions

Discipline

Drug Testing Policy

Safety Incentive Programs





Discipline as a Violation

How can discipline be a violation?

Employee injured because of failure to wear fall protection

Employer terminates employee

Employee claims real reason for termination was report of

injury because no non-injured employee has been disciplined

for failing to wear fall protection

Remedies

Removal of discipline from file

Back pay

Reinstatement





Drug Testing as a Violation

How can a post-accident drug test be a violation?

Employee reports a work-related injury

Employer’s policy states: any employee who requires

medical treatment will be drug tested

Employee complains to OSHA that injury was reported and

employer retaliated by mandating drug test where it was not

warranted

13





Drug Testing: Compliance Guidance

OSHA will consider the following:

Reasonable basis for testing? Drugs could have contributed

Were other employees involved in the accident tested?

Does the employer have a “heightened interest” in identifying

drug impairment given the hazardousness of the work?

Testing conducted to comply with other state and

federal laws is not retaliatory

Blanket testing to obtain workers’ compensation

discount not retaliatory

CBA will not protect the employer

14





Incentive Plan as a Violation

Employer administers a policy that takes a bonus away

from employees when a recordable injury is reported

Employee reports an injury and employee or group of

employees loses a bonus

Employee complains to OSHA

Employee reported an injury

Employer took an action – taking away the bonus – that

would generally deter reporting

Employer took that step because the injury was reported

15





Incentives – Compliance Guidance

Incentive programs not banned

“Blended” programs are likely compliant

Management bonuses are likely compliant

Bonuses to large groups of employees based on coming in

under a rate threshold are likely compliant

OSHA: Employers should encourage programs that

reward --

Completion of training

Reporting hazards and near misses

Participation in auditing

Compliance with work rules

16





Industry Challenges Amendments

Industry plaintiffs challenge reporting/anti-retaliation

provisions in TX and OK

Focus is post-accident drug testing and safety incentive

programs

OSHA has no authority to create a new remedy

OSHA says repeatedly that this is not new – Section

11(c) already prohibits this behavior

Does OSHA have the authority to create a new

remedy? Isn’t this Congress’ job?

17





Trump Administration Options to Repeal

OSHA’s counsel waves the white flag?

DOJ may concede plaintiffs’ position and settle

More rulemaking?

Repeal through notice-and-comment rulemaking – takes time

and resources

Withdraw compliance guidance?

Withdraw all of the compliance guidance and announce that

post-accident drug testing and administration of safety

incentive programs are not violations of provisions

Unofficial “reluctance” to issue citations

18





What Happens Next?

At end of the day…Section 11(c) is still there

Even if anti-retaliation provisions are eliminated and OSHA

cannot issue a citation for retaliation, employees can always

file an 11(c) claim

Remedies are limited – if OSHA does not find cause,

employee has no right to hearing before an ALJ or District

Court

Plaintiffs’ attorneys have gotten smart: Look for another

statute that may apply to allow for a hearing, back

pay/punitive damages, reinstatement and attorney’s fees

19





Volks Recordkeeping Issue

Statute of limitations for OSHA violation: 6 months

OSHA’s position on recordkeeping

Violations are “continuing”

An injury not recorded on January 1, 2015 is still unrecorded on

January 1, 2017 – violation of the regulation

Statute of limitations for a recordkeeping violation is 5 years plus 6

months

Volks D.C. Circuit Decision: “OSHA, you’re wrong”

20





Volks Recordkeeping Issue

OSHA does not appeal

Instead, OSHA issues final rule changing the recordkeeping

regulation to “clarify” the statute of limitations

OSHA issues amendment to Recordkeeping regulation:

statute of limitations is 5 years plus 6 months

How can OSHA change its own statute of limitations?

21





Volks Regulation Repealed

Congressional Review Act – repeal regulation within

60 days of implementation

House and Senate vote to repeal regulation

President Trump repeals regulation on 4/3/17

CRA used once at the tail end of the Clinton

Administration to repeal ergonomics standard

Since President Trump took office, 13 regulations repealed

using the CRA

Once a regulation is repealed, agency is prohibited from

issuing “substantially similar” regulation in the future





Volks Regulation Repealed

Implications

OSHA cannot enforce beyond the 6 month statute of

limitations

Employer must keep 5 years worth of OSHA 300 Logs/301

forms (and OSHA can ask to see them), but a citation

alleging issued more than 6 months after violation is not

timely

“Bad apples” rewarded?

Less incentive to record properly because risk of citation is low

Pressure not to record “close cases” intensifies

Is 300 Log data a worthwhile metric?





Thank You

24

Melissa A. Bailey Ogletree Deakins, Nash,

Smoak & Stewart, P.C.

1909 K Street, N.W.

Suite 1000

Washington, DC 20006

Phone: 202-887-0855

[email protected]

mailto:[email protected]

.

ogletreedeakins.com

EEI CONTRACTOR SUMMIT –

OSHA RECORDKEEPING Presented by: Melissa A. Bailey (Washington, D.C.)

[email protected]

202 887-0855

.

© 2016, Ogletree, Deakins, Nash, Smoak & Stewart, P.C.

CenterPoint Energy Proprietary and Confidential Information

Impact of new OSHA Recordkeeping on

CNP Contractor Safety Program

Steve W. Montgomery

April 27, 2017

Potential Impacts

• New Reporting Requirements (remind contractors of new OSHA notification requirements within 8 and 24 hours– Fatality, loss of eye, amputations, or hospitalization of a worker)

• Temporary contractor services – (Day to Day Supervision)

• Incident Report for OSHA recordable incidents – CNP has always required contractors to provide a formal incident report for recordable injuries.

• Discussion on Safety Incentives related to contractors.

• Also conversations around Drug Testing for contract companies.

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Proactive Process Implemented at

CenterPoint Energy

Major Project Safety

– Set Safety & Health Expectations during the project planning

phase and bidding process.

– Weekly evaluation of the project Safety Performance

– Safety Performance is measured using Leading Indicators

Job Briefing Completion

PPE Utilization

Utilization of Safe Work Practices

– Monthly report of Incident Rates

– Safety Communication

Monthly communication meeting for Contractor Safety Representatives

Safety Awareness Bulletin

Every Meeting Starts with a Safety Share

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QUESTIONS?

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