Will OSHA Conduct an Inspection after an Employee Complaint?

OSHA will make inspections of a workplace for a variety of reasons, including following a worker injury and always after a worker’s death.

Inspections may also occur randomly or part of a program aimed at a particular industry that OSHA has decided to target.

The other way an inspection may occur – and the main focus of this article – is if an employee contacts the agency to complain about possible safety violations.

These complaints may or may not result in an inspection of your workplace based on certain conditions, including the timing of the complaint. Under OSHA regulations, a worker can only report an alleged violation.

After OSHA receives a complaint it will decide whether it is worthy of an on-site inspection.

The agency has a set of criteria, at least one of which must be met in order for it to conduct an on-site investigation or an investigation that includes sending the employer a questionnaire to determine if it is complying with its safety regulations.

A current employee or employee representative must submit a written, signed complaint:

  • That includes enough details to help OSHA assess whether the employer is violating its safety regulations or if there is an imminent danger of physical harm to employees.
  • That alleges the worker was injured or made ill by a hazard that is still present in the workplace.
  • That claims an imminent danger to workers exists in the workplace.
  • About a company in an industry that is part of an OSHA local or national emphasis program, or a high-hazard industry that is the focus of such a program.
  • Against an employer that has been cited in the past three years by OSHA for egregious, willful or failure-to-abate citations.
  • Against a facility that is scheduled for or already part of an OSHA inspection.

 

If any of these conditions are not met, OSHA will typically make a complaint inquiry by phone or e-mail.

 

How a complaint inquiry works

If, for example, one of your employees contacts OSHA to complain that you are not using proper lock out/tag out procedures when cleaning certain machinery, the agency would likely contact your company.

It would tell you about the alleged hazard and ask that you assist in determining whether a hazard or violation exists.

During that first point of contact, the agency would ask that:

  • You promptly investigate to see whether the violation does indeed exist and that if it does, you abate the hazard to ensure employee safety and regulatory compliance.
  • After investigating, you document your findings and detail what kind of corrective action you took or are undertaking.
  • You post a copy of the complaint letter from OSHA in a conspicuous area so that all of your employees can see it.

 

OSHA usually requires that you respond with the results of your internal investigation and provide the report of findings and action taken within five days of being contacted by the agency.

If you don’t respond to the initial contact, do not provide a report within five days or if OSHA deems your response inadequate, it may then decide to inspect your facility.

OSHA will also provide a copy of your response to the complaining employee. If the employee thinks you have not made the corrections or have not been honest with OSHA, they can ask the agency to conduct an on-site inspection.

 

OSHA Pulls the Plug on Electronic Reporting Rules

Federal OSHA has suspended its much anticipated and dreaded electronic filing rules for workplace injury and illness records. The rules, put in place during the Obama Administration, would have required organizations with 250 or more employees to submit electronically 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). The same rules would also apply to employers with between 20 and 249 employees in certain industries, including agriculture, construction, manufacturing, retail and transportation.

A major thrust of the rules was to name and shame employers with poor workplace safety histories, and the latest move will essentially keep these records from being published. The requirement was to be phased in over two years. This year, all covered establishments had until July 1 to turn in their 2016 forms in electronically, but OSHA never launched the website for companies to submit the information.

The employer community, particularly the construction industry, had heavily lobbied the Trump Administration to jettison the new rules, saying that if injury records were publicized they could unfairly hurt the reputation of employers. The new rules were supposed to be an extension of an OSHA requirement between 1995 and 2012 that required some 180,000 establishments in high-hazard industries to submit their 300A forms by mail. The program lapsed in anticipation of the now extinguished new rules. Then in May, OSHA wrote on its website that it “is not accepting electronic submissions of injury and illness logs at this time, and intends to propose extending the July 1, 2017 date by which certain employers are required to submit the information.” As a result, the existing rules for the forms remain in place – and particularly that employers post Form 300A in a conspicuous place in the workplace every year starting Feb. 1 for two months.

While employers are not required to send their completed forms to OSHA, they must retain the forms at their establishments for five years after the reference year of the records.

Compliance with existing rules

Even if you are not focused on qualifying for either of these exemptions, there are still other important things to remember about posting your 300A.

  • If you are required to post a 300A, you need to do so whether or not you had any injuries in the past year. It is completely appropriate – and required for covered businesses – to post a 300A saying that you had no injuries or illnesses.
  • Sign the 300A when you post it. That is required, and something businesses often forget to do.
  • Post the 300A in an accessible location where employees can easily see it, and keep it posted until April 30.
  • Be sure to post the 300A, and not the 300. Not only is this problematic because it is the incorrect form, but the 300 contains employee names, so making it public can result in privacy violations.
  • You do not need to post the official 300A form from OSHA’s website; it is acceptable to post your own, homemade form containing equivalent information if you would prefer to do so.

Legislation Would Let Employees Trade O.T. for Vacation Time

A newly proposed bill would change the Fair Labor Standards Act’s overtime mandate to allow workers to trade overtime pay for compensatory time off.

Introduced by Martha Roby, a Republican from Alabama, the Working Families Flexibility Act of 2017 would:

  • Cap the amount of paid time off that workers can accrue each year at 160 hours.
  • Require employers to pay out annually any unused comp time.
  • Give employers 30 days to pay out any unused comp time beyond 80 hours.
  • Require employers to pay out any unused comp time accrued upon termination for any reason.

 

Under current FLSA rules, employers must pay nonexempt workers overtime at a rate of 1.5 times their wage for every hour worked beyond in a 40-hour week.

The bill, if passed, would allow nonexempt workers to earn compensatory time off at a rate of no less than 1.5 times every hour for which they would have otherwise earned overtime pay.

This bill is a novel approach that gives both employers and employees an option of more time off every year, which in turn can help staff better achieve a work-life balance that the standard arrangement of two weeks’ vacation every year may not provide.

Some workers may prefer more time off over additional funds and would be happy to take a longer vacation instead of more money.

The legislation would allow employees to choose which option they would prefer, and the employer must honor their choice.

By virtue of the fact that the legislation was floated by a Republican and that the Trump administration has expressed an interest in laws that would give employees time off, such as after the birth of a baby, there is a chance the bill can advance in the House.

 

Rating Bureau Recommends Benchmark Rate Decrease for California Employers

IN A SURPISE move, the Workers’ Compensation Insurance Rating Bureau of California has filed a recommendation to reduce average baseline rates on policies by 7.8% at the mid-year mark.

The mid-year reduction to the baseline rate is largely the result of reforms that were introduced in 2013 that have sped up the settlement process for claims (including many long-term claims), in addition to reducing medical costs.

Also, because of these reforms the cost of adjusting workers’ comp claims in California has dropped over the past few years.

Insurance carriers use the benchmark rate – also known as the pure premium rate – as a starting point for pricing their policies.

The benchmark rate is an average across all industries and employers may or may not see decreases in their workers’ comp premium come renewal as many other factors are at play, not the least of which is the employer’s own safety history.

Region is also important and insurers are pricing policies for Southern California employers higher than for the rest of the state due to the continuing problem of cumulative trauma claims being filed by workers post-termination, mostly in the greater Los Angeles area.

“Cumulative injury claims often involve multiple injuries [that have developed over time], are very frequently litigated, are filed disproportionately in the Los Angeles Basin and often are filed on a post-termination basis,” the Rating Bureau stated in a report on the state of the market as of Dec. 31, 2016.

Indeed, while cumulative trauma claims accounted for just 8% of all claims in 2005, in 2015 they comprised 18% of all claims, according to the Bureau.

The state insurance commissioner sets the benchmark rate with guidance from the Rating Bureau. A hearing will be held in June, after which the commissioner can choose to approve the rate filing, reject it or set another rate that’s either higher or lower than that recommended by the Bureau.

The rate filing is 7.8% less than the approved pure premium rate for policies incepting on or after Jan. 1, 2017. It recommends an average advisory pure premium rate of $2.02 per $100 of payroll. That’s compared with $2.19 per $100 of payroll as of Jan. 1.

The pure premium rate is a reflection of an overall decline in the total cost of claims thanks to SB 869, legislation that was signed into law in 2013.

By addressing numerous cost drivers it has helped reduce medical costs, expedite claims settlements, and reduced the frequency of workers’ compensation claims. The legislation also increased benefits for some injured workers.

As a result, the average projected ultimate cost of a claim increased to $82,234 at the end of 2016, compared to $74,699 in 2013.

Rising average payouts for wage losses and medical costs per claim are both contributing to average claim cost increases, according to Rating Bureau data.

EEOC Says Use of Service Dog is ‘Reasonable Accommodation’ under ADA

The Equal Employment Opportunity Commission has sued an employer for refusing to hire a job applicant because he used a service dog.

In the complaint filed in March, the EEOC accused the employer of failing to accommodate, refusing to hire and retaliating against the man who’d applied for a truck driver position.

The action illustrates just how broadly the EEOC construes the Americans with Disabilities Act when it comes to individuals who rely on service or comfort animals to cope with their disabilities.

In the case at hand, the applicant had been admitted to driver training with the trucking firm’s partner training company. Before starting the training the applicant told the company that he is a veteran who uses a trained service dog to help control anxiety and to wake him from nightmares caused by post-traumatic stress disorder.

After he successfully completed the training program, the trucking firm refused to advance him to its driver-orientation additional training on the road, which required staying overnight from home. Moreover, the company had a “no pet” policy and never hired him.

Incidentally, the EEOC noted that at the same time the company had denied the applicant’s request to accommodate his service dog, it developed a new service dog process to address requests seeking the use of such animals.

The EEOC has asked the court to order the company to hire the applicant and pay him back pay as well as compensatory and punitive damages.

The agency notes that using a trained service dog can be a reasonable accommodation for a disability and that employers must consider requests to use a service dog seriously.

 

 

When Safety Shortcuts Become a Criminal Act

As the economy grows and companies’ operations are busier, workplace injuries also increase. And as companies add employees, they may fail to keep up their safety regimens, which can result in an uptick in workplace injuries.

Some businesses have so much to keep track of that they may be negligent in enforcing their safety standards and making sure that all of their safety devices are in proper operating order.

When an employee is injured due to an employer’s negligence in keeping up its safety practices, there is typically no right of action for the employee under the exclusive remedy bargain that’s implicit in all workers’ comp agreements.

In that bargain, the employee trades the ability to sue the employer for the right to receive benefits and medical care to treat the injury.

But there is a point where employer negligence spills over into a criminal issue and owners risk incarceration for flagrant violations that put employees at risk.

And during the last few years OSHA has been stepping up criminal prosecutions of employers whose actions were more than just negligent.

While criminal penalties under the federal Occupational Safety and Health Act are fairly limited, with imprisonment capped at six months and fines capped at $10,000, the fines are stiffer for willful violations that cause loss of human life, with maximum fines of $250,000 for an individual and $500,000 for an organization.

If an employer’s willful violation of an OSHA standard causes the death of an employee it is not a felony, but a “Class B” misdemeanor.

And although the act carries with it the possibility of a prison term, in practice, prison occurs only in the rare circumstances where a senior management official operates de facto as the company. Otherwise, practically, only criminal monetary fines are applied for criminal violations.

Historically, there have been few prosecutions. There have been fewer than 80 OSH Act criminal cases resulting from the more than 400,000 workplace deaths that took place since the law was enacted. That’s fewer than two a year, and only 14 have resulted in criminal convictions.

Also, it’s challenging to prove a criminal violation under the OSH Act.

But in 2016, the Department of Justice (DOJ) started encouraging all United States Attorneys to charge employers for other violations that occur in connection with OSH Act violations, such as obstruction of justice, making false statements, witness tampering and conspiracy.

 

U.S. Attorneys were also encouraged to consider environmental crimes, which often occur in concurrence with worker safety violations. These offenses carry more significant periods of incarceration and fines.

 

Conviction examples

Two noteworthy examples of this wider implementation of the law are:

  • The owner of a roofing company in Philadelphia lied to OSHA on four occasions that he’d provided fall protection to employees after one his workers fell to his death. He even went so far as to instruct other workers to tell OSHA that they had worn fall protection on the day of the incident.
    He was indicted for lying, obstruction of justice and willfully violating an OSHA standard. Facing 25 years in prison, he pleaded guilty and was sentenced to 10 months in jail.
  • A worker was killed in 2015 because of a trench collapse at a construction site in Manhattan’s Meatpacking District. The general contractor was convicted of manslaughter for improperly securing the work site.

 

To obtain a conviction under Section 17(e) of the act, a prosecutor must establish beyond a reasonable doubt (unlike the lower civil standard for ordinary OSHA enforcement actions) that:

  • An OSHA standard (not the General Duty Clause) was violated;
  • The violation was committed by the employer (in other words, not by a rogue employee);
  • The violation of the standard was the direct cause of an employee’s death (prosecutors must prove beyond a reasonable doubt that the conduct underlying the OSHA violation resulted in the death); and
  • The violation was committed willfully by the employer.

 

Other actions that may result in criminal action

According to a the DOJ, in addition to willful OSHA violations that caused an employee fatality, employers (and employees) can face criminal sanctions in the following circumstances:

  • Falsifying OSHA documents
  • Advance notice of an OSHA inspection
  • Perjury during OSHA proceedings
  • Violating state criminal laws – The OSH Act does not preempt prosecution under state criminal laws, such as manslaughter or negligent homicide for work-related deaths and injuries.
  • Violating environmental laws.

Pot’s Legal. What Does It Mean for Your Business’s Anti-drug Policies

Now that Californians have overwhelmingly voted to legalize the recreational use of marijuana, many employers may be wondering where they stand if they want a drug-free workplace.

Fortunately, Proposition 64 included a number of safeguards for employers, allowing them to have anti-drug workplace rules in place. In fact, these safeguards were built into the initiative to the point that the California Chamber of Commerce took a neutral stance on the measure.

Prop. 64 would allow Californians who are 21 and older to possess, transport, buy and use up to an ounce of cannabis for recreational purposes, and allow individuals to grow as many as six plants.

But that doesn’t mean that you must allow workers to spark up at work.

Under the measure:

  • You can still conduct pre-employment drug tests and have policies barring from hire any applicants who test positive for marijuana.
  • You can fire workers who test positive when they are tested for permissible reasons, like if they may be at fault in a workplace accident.
  • You can bar use or consumption of marijuana at work.
  • You can bar possession, transfer, display, transportation, sale or growth of marijuana in the workplace.

 

Accommodation

Fortunately, there is already precedent for employment issues that may arise when someone is using medical marijuana, and employment law experts say the same precedent would apply to recreational pot as well.

In 1996, California passed the Compassionate Use Act, which allows “seriously ill Californians” to use marijuana for medical purposes with a doctor’s recommendation.

But some employers were sued for having in place drug-testing policies in light of the law.

In 2008, the California Supreme Court tackled the issue in the case Ross vs. RagingWire Telecommunications Inc., opining that the Compassionate Use Act does not apply to employment and that marijuana, even for medical use, is still illegal under federal law.

The court ruled that California employers can require pre-employment drug tests and take illegal drug use into consideration in making employment decisions.

Essentially, Prop. 64 codifies that ruling.

 

Likely legal action

Wrongful termination cases in California have subsided dramatically since the RagingWire decision, but some employees still sue their employers alleging they didn’t have a right to drug test them.

Under Prop. 64, however, these suits would have no merit.

According to a report in the San Francisco Chronicle, the more typical actions these days are ones filed by employees who got high during a lunch hour or break and after returning to work caused an accident or harassed a colleague.

In those cases, it’s the victims who may sue the company, accusing it of not monitoring workers for intoxication or condoning the use of medical marijuana in the workplace.

Orange County employer defense attorney Todd Wulffson told the Chronicle that employers may want to consider:

  • Having drug and alcohol policies in place.
  • If you plan to drug test, having policies stating that “for purposes of drug testing, marijuana is an illegal drug.”
  • Ensuring that employees read your drug and alcohol polices carefully and understand under which conditions they may be tested.
  • Having someone on your human resources staff who is trained to spot drug intoxication.
  • Having a zero-tolerance policy for being high on the job.
  • Requiring that managers refer signs of drug use to human resources.

 

The law

These are the current rights of California employers:

  • Employers can conduct pre-employment drug testing as long as they test all applicants.
  • Employees can only be tested if there is a reasonable suspicion they are under the influence, or after an accident – unless there is no way the employee could have caused it – or if it is required under federal law.
  • Random testing is generally only allowed for safety-sensitive jobs, including construction, driving and any other jobs that can put employees or the public in harm’s way.

Why You Need ‘Key Man’ Insurance

If you are operating a small business, you are likely relying on a small staff to get the job done.

Many employees in small firms have to wear many hats and if one of them or an owner should die, the business could suffer greatly from that sudden loss of talent. If you don’t have “key man” insurance, that setback could be devastating to the viability of your operations, whereas coverage would provide you with extra funding that you would need while recovering from the loss.

Key man insurance is simply life insurance on the key person in a business. In a small business, this is usually the owner, the founders or perhaps a key employee or two. These are the people who are crucial to a business – the ones whose absence would sink the company. You need key man insurance on those people.

 

Key man insurance basics

Before purchasing coverage, give some thought to the effects on your company of possibly losing certain partners or employees.
In opting for this type of coverage, your company would take out life insurance on the key individuals, pay the premiums and designate itself as the beneficiary of the policy. If that person unexpectedly dies, your company receives the claim payout.

This payout would essentially allow your business to stay afloat as you recover from the sudden loss of that employee or partner, without whom it would be difficult to keep the business operating in the short term.

Your company can use the insurance proceeds for expenses until it can find a replacement person, or, if necessary, pay off debts, distribute money to investors, pay severance to employees and close the business down in an orderly manner.

In other words, in the aftermath of this tragedy, the insurance would give you more options than immediate bankruptcy.

 

Determining whom to cover

Ask yourself: Who is irreplaceable in the short term?

In many small businesses it is the founder who holds the company together – he or she may keep the books, manage the employees, handle the key customers, and so on. If that person is gone, the business pretty much stops.

 

Determining amount of coverage

  • The amount of coverage depends on your business and revenue.
  • Think of how much money your business would need to survive until it could replace the key person, come up to speed and get the business back on its feet.
  • Buy a policy that fits into your budget and will address your short-term cash needs in case of tragedy.
  • Ask us to get some quotes from different insurers.
  • Check rates for different levels of coverage ($100,000, $500,000, etc.)

Cal/OSHA Mulls Changes to First Aid Kit Requirement

California employers may have to update and expand their workplace first aid kits next year as Cal/OSHA finalizes new regulations governing what they should contain.

The rule-making board for Cal/OSHA has proposed changes that should make it easier to comply as one of the most confusing parts of the regulation is set to be eliminated. A portion of the current rules lays out the requirements for the first aid kit contents, which the employer can deviate from with a note from an employer-authorized licensed physician.

The regulations being formulated now would do away with those requirements and instead require employers to have adequate first aid supplies based on the hazards of their workplace, or face a Cal/OSHA citation.

The new regulations will essentially be performance standards, since the contents of the kit will be determined by the needs of an employer’s workforce.

Cal/OSHA wants employers to assess the likely injuries in their workplaces and prepare appropriately with supplies and training.

The standard is in need of revision as knowledge about first aid has evolved over time.

Most small employers are unaware of the consulting provision, but members of Cal/OSHA’s rule-making board say that the provision is unnecessary. Often if there is a note, it is merely a photocopy that has been provided by the manufacturer of the first aid kit.

Many of Cal/OSHA’s board members recommend using the first aid kit contents as recommended by the American National Standards Institute (ANSI), and that the contents be checked every three months to ensure all of the required suppliers are there.

Minutes from the October board meeting indicated that the members are leaning towards a three-pronged requirement:

  • That there be a minimum list of materials that are suitable for an office environment and perhaps at least partially include items in the ANSI list.
  • That there are other items in the kit based on the hazards that are specific to the workplace.
  • Requirements for specific hazards, like companies that have chemicals or other substances keeping the proper antidotes on hand for workers who are exposed. That would require a doctor’s certification.

 

What constitutes first aid?

First aid is defined by Cal/OSHA as:

  • Issuing non-prescription medications at non-prescription strengths;
  • Administering tetanus vaccinations;
  • Cleaning and covering wounds;
  • Using hot/cold therapy;
  • Using non-rigid supports and temporary immobilization devices;
  • Drilling fingernails and toenails to relieve pressure;
  • Administering eye patches, irrigating eyes or swabbing them to remove foreign bodies;
  • Removing splinters from areas other than the eye;
  • Using finger guards;
  • Using massage; and
  • Providing fluids for heat stress.

 

One piece of good news is that the requirements will likely not cost employers a lot of money. If a business already has an ANSI-approved kit, it would most likely suffice unless there are workplace dangers that may require additional materials.

The new rules are expected to take effect in early 2017.