Rules + Regs

Bill toughens California's worker safety mandates

Beginning Jan. 1, 2019, the California Division of Occupational Safety and Health (Cal/OSHA) will be permitted to cite employers for record-keeping violations up to five years old, according to Bloomberg Law. The previous limit in California was six months, and the limit remains six months for the federal Occupational Safety and Health Administration (OSHA).

Signed into law by California Gov. Jerry Brown Sept. 19, the bill also requires California to establish an advisory committee to determine whether employers should be required to file copies of their injury and illness records with the state. The bill says the committee would be formed if the Trump administration "substantially diminished" existing mandates for employers to electronically file injury and illness data with federal OSHA.

Peg Seminario, safety and health director for AFL-CIO, says the bill will give Cal/OSHA "the clear authority to effectively enforce workplace injury recording rules and will help maintain OSHA injury reporting requirements now being targeted by the Trump administration."

During the Obama administration, federal OSHA enacted a five-year limit for the record-keeping rule in response to a 2012 court ruling that set a six-month limit. In April 2017, President Trump signed a congressional resolution restoring the six-month limit.

The California bill can't extend the five-year limit to a California-based employer operating outside the state because other states will be covered by federal or state laws.

New OSHA program targets high injury and illness rates

The Occupational Safety and Health Administration (OSHA) is launching its Site-Specific Targeting 2016 (SST-16) Program using injury and illness information electronically submitted by employers for calendar year 2016, according to www.osha.gov. The program will target establishments with high injury rates in the manufacturing and nonmanufacturing sectors for inspection.

Through the SST-16 Program, OSHA will inspect employers the agency believes should have provided OSHA Form 300A data but did not for the 2016 injury and illness data collection. For calendar year 2016, OSHA required employers to electronically submit Form 300A data by Dec. 15, 2017. The calendar year 2017 deadline was July 1, 2018; however, employers still may provide this information to the database.

Going forward, establishments with 250 or more employees that currently are required to keep OSHA injury and illness records and establishments with 20 to 249 employees classified in specific industries with high rates of occupational injuries and illnesses will be required to submit injury and illness information each year by March 2.

Employers permitted to offer worker safety incentive rewards

The Occupational Safety and Health Administration (OSHA) recently reversed Obama-era safety incentive program guidelines and now will allow employers to reward workers for low workplace injury rates with bonuses and celebrations, according to Bloomberg Law.

However, employers still want OSHA to withdraw the rule the interpretation covers, which allows OSHA to penalize employers for incentive programs the agency believes discourage reporting injuries and illnesses—even if no workers complain.

Marc Freedman, vice president of workplace policy at the Chamber of Commerce, says the regulation is too vague because the rule frequently uses "reasonable" to determine whether programs are acceptable. He also says the interpretation could be rewritten every time control of the White House switches parties.

"The letter doesn't address the significant problem with the underlying regulatory text," Freedman says.

David Michaels, who led OSHA during the Obama administration, says the new interpretation doesn't change the language in the rule's preamble.

"The regulation makes it clear," Michaels says. "Employers are prohibited from discharging or in any manner discriminating against employees for reporting a work-related injury or illness."

Although the Obama-era interpretation allowed OSHA to cite an employer that withheld a prize or bonus after a worker reported an injury, the new guidance allows employers to withhold rewards in some cases. OSHA won't cite an employer "as long as the employer has implemented adequate precautions to ensure that employees feel free to report an injury or illness."

Lawrence Halprin, a partner at Keller and Heckman LLP in Washington, D.C., who has represented businesses opposing the rule, says employers will have to wait to see how OSHA applies the guidance.