In 2016 the Occupational Safety and Health Administration issued a Rule intended to improve the tracking of workplace injuries and illnesses, known as the Electronic Recordkeeping Rule.  The Rule would have required covered employers – those with 250 or more employees that are otherwise required to maintain OSHA injury and illness records, and those with 20-249 employees in designated “high-risk industries” (including manufacturing, construction, and many healthcare establishments) – to electronically submit Form 300A Summary of Work-Related Injuries and Illnesses data to OSHA on an annual basis.  The Rule also imposed an additional requirement on larger employers (those with 250 or more employees).  The Rule would have required those larger employers to electronically submit to OSHA much more detailed information from their OSHA Form 300 Logs and OSHA Form 301 Illness and Injury Incident Reports.

July 1, 2018 was the initial deadline for electronic submissions required by the new Rule.  However, OSHA suspended the implementation of the proposed Rule with respect to Form 300 and Form 301 data.  July 1, 2018 remained the date by which covered employers were required to electronically submit Form 300A summary data.

In welcomed news for larger employers, and apparently due to its new-found desire to protect worker privacy, OSHA has rescinded that part of the 2016 Rule requiring employers with 250 or more employees to electronically submit to OSHA the more detailed Form 300 Log and OSHA Form 301 data.  The OSHA note regarding the Rule, dated January 24, 2019, is available here.  As a result, electronic submission of OSHA Form 300 and OSHA Form 301 data is no longer required.

It is important to note that the remaining electronic recordkeeping requirements imposed by the 2016 Rule, as stated above, continue in effect.  Accordingly, all covered employers (250 or more employees and those with over 20 employees in designated high-risk industries) must electronically submit to OSHA Form 300A summary information, annually, by March 2 of the following calendar year.

If you have any questions regarding your OSHA reporting requirements, please contact any member of our Labor and Employment Group.

By existing OSHA regulations, most employers (those with more than 10 employees) are required to complete and maintain records pertaining to serious work-related injuries and illnesses, using the OSHA 300 Log, OSHA 301 Incident Report and OSHA 300A Annual Summary. Certain employers in low-risk industries as determined by OSHA (such as law offices, realtors) are exempt and not required to keep these records. In addition, all employers that are required to keep injury and illness records must report to OSHA any workplace incident resulting in a fatality, in-patient hospitalization, amputation, or loss of an eye.

Under a new rule that becomes effective January 1, 2017, certain covered employers will be subject to additional reporting obligations requiring the electronic submission of certain workplace illness and injury information to OSHA. (Under current regulations, employers are not required to provide illness and injury data to OSHA except upon request, as in the case of an OSHA inspection, or in the case of fatality, in-patient hospitalization, amputation, or loss of an eye.) The new rule will not change the existing recordkeeping requirements noted above.

The employers covered by the new rule and the additional reporting requirements are as follows:

  • Establishments with 250 or more employees in non-exempt industries (those currently required to keep OSHA injury and illness records) must electronically submit information from OSHA Forms 300 – Log of Work-Related Injuries and Illnesses, 300A – Summary of Work-Related Injuries and Illnesses, and 301 – Injury and Illness Incident Report.
  • Establishments with 20-249 employees in certain industries with historically high rates of occupational injuries and illnesses (such as construction and manufacturing operations) must electronically submit information from OSHA Form 300A. This link lists industries with historically high workplace injury/illness rates.  Covered employers must electronically submit the required injury and illness information annually. OSHA will provide a secure website with three electronic submission options: manual entry of the data into a webform. Uploading of CSV files to process single or multiple establishments at the same time, and electronic data transmission via an API (application programming interface) for users of automated recordkeeping systems. The site is scheduled to go live in February 2017.

The new reporting requirements will be phased in over two years according to the following schedule:

– For covered employers with 250 or more employees in industries covered by the recordkeeping regulation

  • only 2016 Form 300A information must be submitted in 2017 – by July 1
  • all required 2017 injury and illness information (Forms 300A, 300, and 301) must be submitted by July 1, 2018, and
  • beginning in 2019 and every year thereafter, the required information must be submitted by March 2

– For covered employer establishments with 20-249 employees

  • 2016 Form 300A information must be submitted by July 1, 2017,
  • 2017 Form 300A information must be submitted by July 1, 2018, and
  • beginning in 2019 and every year thereafter, the information must be submitted by March 2.

Some of the electronically submitted data will also be posted to the OSHA website and become accessible to the public. According to OSHA, Personally Identifiable Information (PII) that could be used to identify individual employees will be removed and not posted. OSHA believes that public disclosure will encourage employers to improve workplace safety and provide valuable information to workers, job seekers, customers, researchers and the general public. However, employers and industry groups have expressed concern that increased reliance upon recordkeeping information when targeting establishments for inspection, and the public availability of the information, will serve to hold employers accountable for the mere occurrence of a recordable incident and create other unwarranted consequences detrimental to employers. The recordkeeping standards have historically been thought of as a no-fault system: work-related incidents need to be recorded even if they are unpreventable. The new rule could create an incentive to under-report and reward employers that do so, while punishing employers with robust safety programs and effective incident reporting systems. But the new rule is here to stay, so only time will tell if these employer concerns are warranted.

The new rule also includes provisions designed to promote complete and accurate reporting of work-related injuries and illnesses. These include: employers must inform employees of their right to report work-related injuries and illnesses free from retaliation, which can be satisfied by posting the OSHA Job Safety and Health – It’s the Law worker rights poster; an employer’s procedure for reporting work-related injuries and illnesses must be reasonable and not deter or discourage employee reporting; and, an employer may not retaliate against employees for reporting work-related injuries or illnesses. These provisions were originally intended to became effective August 10, 2016, but enforcement has been delayed by OSHA until December 1, 2016.

Please feel free to call any member of our Labor and Employment Law Practice Group if you have any questions about this post/the new reporting rule, and for further guidance regarding OSHA compliance and workplace safety issues.

A national home health care provider, doing business in York Pennsylvania as Epic Health Services, was recently issued a citation and significant fine by The Occupational Safety and Health Administration (OSHA) in connection with an assault of an employee by a client.

Even a sanitized version of the facts is disturbing. The employer provides health care and therapy services to clients in their homes. One of the employer’s home health workers was sexually assaulted by a client of the employer while working in the client’s home. Prior to this incident, another employee had specifically warned the employer about sexual assaults. In addition, the employer has received numerous prior reports of verbal, physical and sexual assaults directed toward employees, and of a concern that an employee was working in a home where domestic violence occurred.

Following a complaint by the assaulted employee, and resulting investigation, OSHA determined that the employer failed to adequately protect its employees from the dangers of workplace violence. More specifically, OSHA concluded that Epic Health exposed employees to risk of physical assault while provided home health care to clients and support services to family members, without any system in place for reporting or addressing threats or incidents of violence. In its official news release for this case, OSHA stated: “Epic Health Services failed to protect its employee from life-threatening hazards of workplace violence and failed to provide an effective workplace violence prevention program.”

Obviously, the fact that the employer ignored prior employee reports of hazards and the potential for violence at outside work locations (in clients’ homes) was considered significant in terms of OSHA’s conclusion that the employer failed to adequately protect its workers and provide a safe workplace.

As a result, the employer was cited for a “willful” violation for failing to maintain a safe workplace under OSHA’s General Duty Clause, which is a catch-all type provision that is applied when the issue under consideration is not covered by a specific regulation, as well as a second citation for several “other than serious” recordkeeping violations. In addition, the employer was hit with hefty fines totaling $98,000.00 (including the current maximum $70,000 fine for the willful violation plus an additional $28,000 for the recordkeeping violations).

In the primary citation, OSHA also stated a number of suggested abatement measures that the employer was encouraged to implement in an effort to address workplace violence issues and avoid future similar violations, including:

  • A written, comprehensive workplace violence prevention program;
  • A workplace violence hazard assessment and security procedures for each new client;
  • Procedures to control workplace violence such as a worker’s right to refuse to provide services in a clearly hazardous situation without fear of retaliation;
  • A workplace violence training program;
  • Procedures to be taken in the event of a violent incident in the workplace, including incident reports and investigations; and
  • A system for employees to report all instances of workplace violence, regardless of severity.

As with any OSHA citation, Epic Health Services has 15 days to request a conference with OSHA’s area director to discuss the findings and proposed penalties or file a formal contest with before the Occupational Safety and Health Review Commission to challenge the findings and penalties.

There are many lessons that the prudent employer can take from this case, including:

  • Always be on the lookout for and continuously assess safety and health risks and hazards in the workplace;
  • Keep your eyes and ears open, and listen to and consider legitimate employee concerns and complaints;
  • Don’t ignore, and apply safety programs to, outside/remote work locations;
  • Address safety risks in a timely manner;
  • Recognize that it’s an employer’s responsibly to assess risks and keep employees safe at work within established standards, even with respect to risks, hazards and dangers created by non-employees/third parties; and
  • Maintain, review and update as necessary appropriate and comprehensive policies and procedures addressing workplace safety.

All employers should be attentive to and serious about workplace safety issues, particularly considering OSHA’s ongoing aggressive enforcement efforts and the potential for significant liability (including that the already substantial maximum penalty amounts are expected to be significantly increased in the near future).   Don’t be the unprepared employer that is faced with the likely unfavorable and costly outcome of an unexpected OSHA investigation. Instead, take a proactive approach, review safety programs and overall OSHA compliance status now – before an investigator is at your door – and significantly reduce your risk of liability.

Please feel free to call any member of our Labor and Employment Law Practice Group if you have any questions about this post and for further guidance regarding OSHA compliance and workplace safety issues.

The United States Department of Labor (DOL) recently issued a new Family and Medical Leave Act (FMLA) poster. Employers who are covered by the FMLA are required to display a DOL-prepared poster advising employees and applicants of the major provisions of the Act.

According to the DOL, for now an employer has the choice to continue to use the prior version of the poster (dated February 2013) or to use the new poster (dated April 2016). Even so, use of the new poster is recommended because it is better organized and more user-friendly. It is also generally advisable for employers to use the most current version of required postings. The new poster can be found here, free of charge.

In addition to the new poster, the DOL has also issued a new Employer’s Guide to the FMLA. The guide is intended to provide employers with information concerning their obligations and options for administering FMLA leave. The guide is available here for free download.

For some time now, the U.S. Department of Labor’s Wage and Hour Division (“WHD”) has been taking a progressively more aggressive approach to wage and hour compliance, marked by increased staffing/resources and more frequent investigations.  Certain industries, like construction and gas/oil industry employers, are now frequent targets, but no business is immune from the government’s reach and the potential for a time consuming and costly wage and hour investigation.  Unfortunately for employers, the potential for significantly increased damages is now also part of the equation.  More specifically, the WHD is pursuing not only back wages but also liquidated damages for overtime violations under the Fair Labor Standards Act (FLSA).  Liquidated damages are assessed in an amount equal to any unpaid wage/overtime liability.  With double damages, liability can become quite significant, particularly when multiple employees/collective action claims are involved.

While the FLSA has always provided for liquidated damages, the WHD traditionally pursued only back wages in connection with an administrative investigation.  Liquidated damages were typically pursued only in litigated cases (whether employee initiated or filed by the WHD on behalf of one or more employees).  Now, however, the WHD appears to be assessing liquidated damages almost as a matter of course as a normal part of the investigation process, thus subjecting employers to double liability (back pay plus an equal amount in liquidated damages) in the event an employer is determined to have violated the FLSA.

Although the FLSA recognizes a “good faith defense” to the assessment of liquidated damages, establishing that the defense applies is difficult.  An employer must demonstrate that it acted in good faith (such as by seeking and relying in good faith on the specific advice of counsel in advance of a violation) and had reasonable grounds to believe that its actions were in compliance with the FLSA.  The defense is very narrow and cannot be established by showing that the employer did not intend to violate the law, did not know that it was violating the law, acted based on pure mistake or ignorance, or that its employees are otherwise paid well.

Waiting to address these issues until after the DOL knocks at your door is a mistake that many employers all too often regret.  The smart employer is proactive, not reactive.  The best way for an employer to minimize and protect against wage and hour liability is to conduct internal audits and review compensation, payroll and recordkeeping practices.  Start now and conduct periodic audits going forward, to ensure and maintain compliance with wage and hour laws and to allow for an opportunity to correct issues of concern before you are faced with an outside investigation or lawsuit.  Audits should include review of employee classifications and payroll practices, how salary is paid and deductions are applied, how work time is tracked and recorded, and how overtime is calculated and when wages are paid, all to ensure that employees are properly classified as either exempt or non-exempt and that all practices, classifications, and payment methods are legally compliant with the FLSA and Pennsylvania’s Minimum Wage Act and Wage Payment and Collection Law.

The McNees Labor & Employment Practice Group can assist you with conducting internal audits, reviewing your employment practices, and responding to any DOL compliance inquiry. Please do not hesitate to contact any member of our group for assistance with these issues and any questions you may have.

According to a recent announcement by the Office of UC Service Centers, employers in Pennsylvania can expect that telephone calls will now be part of the state’s fact-finding process in connection with initial eligibility determinations for unemployment compensation benefits.

In the past, when a former employee filed a claim for UC benefits, the employer received a written form questionnaire issued by the local Service Center seeking the information needed to make an initial eligibility determination (such as the nature of and reasons for the claimant’s separation from employment).  According to the announcement, Service Center claims examiners will now call employers to request this information over the phone. It appears, however, that an employer still may elect to provide most of the information relevant to the initial eligibility determination in writing.  An employer who chooses not to participate in telephone fact-finding will be expected to inform the examiner of the nature of the separation and provide an email or fax number to which written fact-finding requests can be sent.  In addition, it is the employer’s responsibility to ensure that its response is complete and provided in a timely manner.

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Separately, it is important to keep in mind that whether the response is provided by phone or in writing, by law an employer’s UC reserve account will be charged for claimant overpayments resulting from a failure to respond or an inadequate or untimely response.  An employer’s response to a request for information in connection with a UC claim will be considered untimely if not provided within the response time allotted (14 days) and inadequate if “the response misrepresents or omits facts that, if represented accurately or disclosed” would have been the basis for denying benefits.

Other than the announcement itself, there does not appear to be any additional information available at this time concerning the intention of state UC authorities to move toward telephone and away from paper based fact-finding at the initial stage of the process. Even so, at the very least employers should expect to receive telephone calls from local UC Service Centers requesting employment and separation information in connection with UC claims. While it should go without saying that truthfulness and cooperation are always recommended when providing information to the state in response to UC claims, the exercise of caution is also warranted when the circumstances involve former employees/separations that are complex, adversarial, or otherwise problematic. In these cases, it is best that the employer ask for the opportunity to provide a written response. Providing a prepared written response versus an immediate/on-the-spot verbal response is likely to reduce the margin for error and enhance the effectiveness of the response.

Contact any of the attorneys in the McNees Labor & Employment Practice Group if you have a question about this post or need assistance with evaluating, responding to, or contesting UC claims.

In late June, the Occupational Safety & Health Administration (OSHA) announced a major initiative that will intensify and expand the agency’s enforcement resources in the healthcare industry, with a focus on several common causes of workplace injuries in hospitals and nursing homes including workplace injuries related to patient or resident lifting, as well as workplace violence, bloodborne pathogens, tuberculosis, and slip and falls.  OSHA has cited to statistics in support of its new initiative. In Calendar Year 2013, the rate of workplace injury and illness in inpatient healthcare settings was nearly twice the rate for private industry workers, and approximately half of the reported injuries in healthcare were attributable to “overexertion-related incidents” which led to musculoskeletal disorders, or “MSDs,” from patient handling.

As part of its new focus, patient handling procedures previously issued by OSHA as guidance will now be enforced as if a regulation.  In addition, OSHA staff have been advised that all hospital and nursing home facility inspections (whether prompted by a complaint, referral, or severe injury report) are now to include review of potential hazards involving MSD-related to patient handling, bloodborne pathogens, workplace violence, tuberculosis, and slips, trips and falls.  These more focused, intensive reviews will include an initial determination regarding the extent of handling hazards and the manner in which they are (or are not) addressed.  It is expected that OSHA compliance officers will evaluate the healthcare employer’s safety program management, program implementation, and employee training. OSHA has provided specific guidance to compliance/investigating officers who will be conducting these evaluations.

Once the employer’s program has been evaluated, compliance officers will make a decision as to whether the ergonomic portion of the inspection will continue.  If there are issues that are not addressed or require further attention, the employer may receive an Ergonomic Hazard Alert Letter identifying deficiencies. OSHA will follow up with any employer receiving an Ergonomic Hazard Alert Letter to determine whether the deficiencies have been addressed and may conduct follow-up inspections as necessary.

The bottom line is that now, and for the foreseeable future, healthcare employers can expect to face more frequent, more focused, and more intensive safety compliance reviews and inspections as a result of this new OSHA initiative. The proactive employer will be in the best position to successfully navigate through an OSHA visit and reduce potential liabilities.  The unprepared healthcare employer will run the risk of significant and costly citations.

Contact any of the attorneys in Labor & Employment Practice Group if you have a question about this post or need assistance with OSHA compliance.

Knock Knock!  Who’s there?  OSHA.  OSHA who?  OSHA, the federal agency responsible for workplace safety, which is going to hit your company with hefty fines if you are not prepared.

This is no joke.  OSHA is a very active and well-resourced organization with an aggressive agenda.  The statistics tell the story: OSHA’s total budget for 2015 exceeds $550 million, more than 36,000 inspections were conducted in 2014, the top 10 fines issued by OSHA in 2014 totaled more than $9.2 million, and significant fines (over $100,000) issued in 2014 averaged $2.6 million/month and totaled $30 million for the year.  With smart preparation, your company can avoid being included among these statistics.

Any company may be subject to an OSHA inspection as a result of an employee complaint, a work-related accident, or random selection for inspection designed to address or target specific workplace hazards (e.g., fall hazards, asbestos).  Regardless of how an inspection is initiated and any specific issue(s) that may be in play in connection with a particular inspection, OSHA will likely review certain records and various areas of compliance including: any required written plans/programs required for your workplace/industry (e.g., safety plan, emergency action plan,  lockout/tag-out procedures, fall protection program), written program and other required Hazcom materials (labels, Safety Data Sheets and training records), accident and injury logs (e.g., OSHA 300 if applicable), and the mandatory OSHA poster.  Taking a proactive approach and ensuring that certain essential OSHA compliance matters have been adequately addressed, before a government inspector is at your door, will best position your company to successfully navigate any future OSHA inspection and reduce potential liability.

For example, OSHA recommends that a compliant safety plan should address certain issues, at a minimum. OSHA recommends that each written plan include the following basic elements:

  • policy or goals statement,
  • identification of responsible persons,
  • hazard identification,
  • hazard controls and safe practices,
  • emergency and accident response, and
  • employee training and communication, and recordkeeping.

If you have a hazard plan, and you must if you are covered by OSHA, does it cover these elements?

Similarly, an OSHA compliant emergency action plan should (at a minimum) address:

  • the means to report fires and other workplace emergencies,
  • evacuation procedures and emergency escape routes,
  • procedures for employees who remain to operate critical plant operations before evacuation,
  • procedures to account for all employees after an emergency evacuation,
  • rescue and medical duties for certain employees with such responsibilities, and
  • names and titles of persons who can be contacted for further information or with questions about the plan.

GSF1Achieving OSHA compliance can seem like a daunting task, but ignoring workplace safety is not an option when there is so much at risk.  The unprepared company can suffer significant consequences and face substantial potential exposure in the event of an OSHA inspection. Those companies which take a proactive and coordinated approach, by first addressing the most critical needs/areas of concern and ultimately developing a comprehensive workplace safety program with full compliance as the goal, are much more likely to succeed.

Stay tuned for future blog posts that will feature additional advice regarding OSHA inspections and address other important OSHA compliance topics.

Contact any of the attorneys in Labor & Employment Practice Group if you have a question about this post or need assistance with OSHA compliance.