OSHA watch

Civil penalties increase to adjust for inflation

OSHA is required to annually adjust civil penalties under a 2015 law that significantly increased the maximum penalties allowed for violations. In January, the maximum penalty for willful and repeat violations increased from $126,749 to $129,336. The maximum fines for other-than-serious, serious, and failure to abate violations rose from $12,615 to $12,934 per violation.

The updated regulatory agenda for fall 2017 contains fewer changes than the previous agenda

The fall agenda shows 16 regulations in three active stages: pre-rule, proposed rule and final rule – up from 14 in the previous agenda. Two rules were moved from “long-term action” status: amendments to the Cranes and Derricks in Construction Standard (now in the proposed rule stage), and Rules of Agency Practice and Procedure Concerning OSHA Access to Employee Medical Records (final rule stage).

The following regulations moved from the proposed rule stage in the previous agenda to the final rule stage in the new agenda:

  • Occupational Exposure to Beryllium
  • Crane Operator Qualification in Construction
  • Quantitative Fit Testing Protocol: Amendment to the Final Rule on Respiratory Protection
  • Technical Corrections to 16 OSHA Standards
  • Improve Tracking of Workplace Injuries and Illnesses

The status of Standards Improvement Project IV, (Lockout/Tagout) the only regulation listed in the final rule stage in July, has not changed.
New fact sheet: Housekeeping, sanitation practices in commercial fishing

The new fact sheet, Commercial Fishing: Safe Housekeeping and Sanitation Practices, states that over half of the recordable injuries in commercial fishing are preventable through good housekeeping and sanitary practices.
New publication warns of fatal confined space hazards on farms

An addition to the Fatal Facts series emphasizes the hazards of working in confined spaces on farms. These spaces include grain and feed silos, sump pits, and manure storage tanks. The fact sheet examines an incident in which a worker asphyxiated inside a whey storage tank.
Safety reminders for snow removal activities

Wintry weather has taken hold across much of the country and employers and workers are reminded to stay mindful of safety during snow removal activities.
Enforcement notes


  • International Polymer Solutions Inc. in Irvine received five citations related to failing to properly control hazardous energy when a moving machine part flew off and struck a worker in the chest, causing serious injury. Proposed penalties are $55,650.
  • Hadley Date Gardens Inc. in Thermal was cited for serious workplace safety and health violations following a bee swarm that stung and killed a tree worker. The company faces $41,310 in proposed penalties for failing to evaluate the worksite for hazardous bee and insect exposure, and failing to establish appropriate safety protocols, which include providing protective equipment and training.


  • Action Concrete Construction Inc. of Panama City Beach faces proposed penalties of $59,864 for exposing its employees to fall hazards and eye injuries.
  • A fatality investigation involving the death of five workers at the Big Bend River Station electrical power plant in Apollo Beach resulted in citations to Tampa Electric Co. and Gaffin Industrial Services Inc., totaling over $160,000. The fines related to energy control procedures and PPE.


  • Koch Foods of Gainesville L.L.C. was cited for multiple safety and health violations at its poultry processing plant, including a repeat violation for exposing employees to amputation hazards by failing to provide machine guarding. Proposed penalties are $208,977.
  • Stalwart Films LLC faces proposed penalties totaling the maximum allowable fine of $12,675, for the company’s failure to provide adequate protection from fall hazards. While filming the television show, “The Walking Dead.,” a stuntman was fatally injured after falling more than 20 feet.
  • Social Circle-based Goodyear Tire & Rubber Co. faces proposed penalties of $69,058 for exposing its employees to burn, hazardous energy, amputation, and caught-in safety hazards.
  • Thomson-based auto parts manufacturer HP Pelzer Systems Automotive Inc. faces penalties for safety violations and proposed penalties totaling $129,336 after an employee suffered a finger amputation.


  • A pallet manufacturer, New Lenox-based Supplyside USA, which operates as Prime Woodcraft Inc., faces $91,862 in penalties after an employee was injured while performing maintenance on equipment.
  • A mechanic, who alleged he was terminated after voicing concerns about unsafe working conditions at a bowling center owned by Lucky Strike Entertainment LLC, in Lombard, will receive a total of $40,000 in back wages as part of a consent judgment.


  • An administrative law judge affirmed citations against Fort Wayne-based commercial construction company, CME Corp, after a temporary employee was injured when he fell through an unguarded hole, but lowered the assessed fine to $6,500 in total penalties because of the company’s strong safety record. The company had contested the fine, arguing the opening was a point of access to the upper level from the pit and did not need to be guarded under the applicable regulations.


  • Schnabel Foundation Company faces $212,396 in proposed penalties for failing to protect employees against crushing hazards while they installed permanent foundation supports beneath the Woburn Public Library. A 2,600-pound rock dislodged from the foundation and fatally struck an employee.

New York

  • Marshall Ingredients LLC faces over $300,000 in proposed penalties after a temporary worker suffered a hand amputation. The company was cited for failing to protect employees against amputations and other hazards at its Wolcott facility. The temporary staffing agency, People Ready, was also cited with two serious violations for lack of hazardous energy control and fire extinguisher training. Proposed penalties totaled $24,020.

For Cutting-Edge Strategies on Managing Risks and Slashing Insurance Costs visit www.StopBeingFrustrated.com

OSHA and EEOC regulatory updates and enforcement stats on first year of Trump administration


Rule and policy status

  • Maximum penalties for violations increased to adjust for inflation as of Jan. 2, 2018.OSHA is required to annually adjust civil penalties under a 2015 law that significantly increased the maximum penalties allowed for violations. In January, the maximum penalty for willful and repeat violations increased from $126,749 to $129,336. The maximum fines for other-than-serious, serious, and failure to abate violations rose from $12,615 to $12,934 per violation.
  • General industry compliance date for Beryllium Standard – March 12, 2018
  • General industry compliance date for Silica rule – June 23, 2018
  • Certification of crane operators – Nov. 10, 2018
  • Elements of Walking-Working Surfaces & Fall Protection – Nov. 19, 2018
  • Rewrite of Lockout/Tagout (LOTO) remains active in the final rule stage under the Standards Improvement Project to make non-controversial changes to confusing or outdated standards. The proposal is to remove “unexpected energization” language from the standard.
  • Injury Data Electronic Submission. OSHA is working on a draft of a Notice of Proposed Rule Making (NPRM) to “reconsider, revise, or remove provisions of the “Improve Tracking of Workplace Injuries and Illnesses” final rule. While July 1, 2018 remains the deadline for the next data submission, OSHA recently changed its website to read: “Covered establishments with 250 or more employees are only required to provide their 2017 Form 300A summary data. OSHA is not accepting Form 300 and 301 information at this time.” Pundits are speculating that changes will include increasing the thresholds for high hazard industries and small employers, limiting submission to Form 300A, and eliminating the Anti-Retaliation provisions.
  • There has been no pullback in the criminal prosecution of employers for willful violations that result in a fatality. A.G. Sessions has not archived the Yates memo, which was issued under the Obama administration and expanded individual accountability for corporate wrongdoing and encouraged use of the tougher environmental statutes. Many expect continued criminal prosecutions.
  • There has been a shift away from the enforcement-heavy philosophy of the Obama administration and an increase in compliance assistance programs and alliances. NBC News recently reported that the number of OSHA inspectors fell 4 percent over the first nine months of 2017; 40 inspectors had left the agency and not been replaced. Impact varied by region, with the Southeast region losing 10 inspectors and experiencing a 26% decline in inspections in the first eight months of the Trump administration. However, inspections in 2017 did increase overall.
  • To date, there has been no change to the expanded scope of the Obama administration’s repeat violation policies. However, this should be watched as many expect a return to the treatment of individual, independent workplaces rather than an umbrella corporate approach and a lookback period of three, rather than five years.
  • There is an effort underway to revitalize the Voluntary Protection Programs (VPP).
  • There was a significant shift away from public shaming. Only 45 press releases related to fines were published in 2017, compared to an average of 463/year for the previous five years. (Conn Maciel Carey L.L.P.)
  • Even though Fed OSHA is reducing the emphasis on enforcement, some state OSH programs, such as California, are increasing enforcement.

Enforcement stats

A recent webinar by the law firm, Washington-based Conn Maciel Carey L.L.P. took a look at OSHA enforcement action in 2017 and the results may surprise you:

  • While the number of OSHA inspections declined each year from 2012 to 2016, they increased 1.4% from 31,948 in 2016 to 32,396 in 2017
  • The number of violations issued has declined since 2010. Between 2016 and 2017, the number of violations declined from 59,856 to 52,519 or 12.2%
  • The percentage of inspections that resulted in no citations issued has remained relatively stable – between 23% and 27%
  • The average penalty per serious violation was $3,645 in 2017, up from $3,415 in 2016
  • The cases with proposed penalties of $100,000 of more jumped dramatically from 154 in 2016 to 218 in 2017, but million-dollar cases fell from an average of 8.4 per year to 6 in 2017
  • The number of repeat violations dropped from 3,146 in 2016 to 2,771 in 2017


Equal Employment Opportunity Commission

Rule and policy status

  • The U.S. District Court for the District of Columbia has vacated the EEOC’s wellness rule effective Jan. 1, 2019, instructing the agency that its goal of revising the rule by 2021 is too slow
  • The Obama rule for large companies to report wages by race and gender on the EEO-1 form was stayed by the Office of Management and Budget in August 2017, except for the new March 31 filing deadline. Covered employers must file their 2017 Form EEO-1 no later than March 31, 2018 and the snapshot period used to compile data should be one pay period during the period from October 1, 2017 to December 31, 2017
  • A pullback on efforts to expand Title VII to cover sexual orientation and gender identity discrimination is expected

Enforcement stats

  • Retaliation charges accounted for the largest number of charges (41,097) filed in fiscal year 2017 for the seventh consecutive year and represented 48.8% of all charges
  • While the overall number of charges filed declined by 7.9%, there was only a slight decline in retaliation charges
  • Following retaliation, race was the second most frequent charge filed with the agency in fiscal year 2017 (28,528) – 33.9% of the total. This was followed by disability, 26,838, or 31.9% of the total; sex, 25,605, or 30.4% and age, 18,376, or 21.8%.
  • The agency also received 6,696 sexual harassment charges and obtained $46.3 million in monetary benefits for victims of sexual harassment

According to the 14th annual Workplace Class Action Litigation Report issued by Chicago-based law firm Seyfarth Shaw L.L.P, key 2017 trends were:

  • The monetary value of top workplace class action settlements rose dramatically, with the top 10 settlements in various employment-related class action categories totaling $2.27 billion, an increase of more than $970 million from 2016’s $1.75 billion
  • Evolving case law precedents and new defense approaches resulted in better outcomes for employers in opposing class certification requests
  • There was no “head-snapping pivot” in filings and settlement of government enforcement litigation despite the change in administration. In fact, government enforcement litigation increased in 2017
  • Several key U.S. Supreme Court rulings over the past year were arguably more pro-business than past year’s decisions

Despite the change in the administration and the Trump deregulatory agenda, the enforcement stats suggest workplace issues are still a high priority for OSHA and the EEOC. Some speculate this will change when new leadership is fully in place. Others suggest that significant enforcement will continue since the language and requirements of the Occupational Safety and Health Act make deregulation difficult without legal challenges and even if the risk of being subjected to systemic EEOC litigation lessens, employers who do not have robust and effective anti-discrimination and anti-harassment policies and practices will remain at significant risk of litigation from private attorneys.

For Cutting-Edge Strategies on Managing Risks and Slashing Insurance Costs visit www.StopBeingFrustrated.com

OSHA watch

Industry challenge to silica rule rejected by court

The U.S. Court of Appeals for the District of Columbia Circuit has rejected all industry challenges to the silica rule and ordered the agency to explain why it omitted medical removal provisions. Industry groups had challenged the rule on several points, including whether there was evidence it would reduce a significant risk of material health impairment, whether it was technically and economically feasible, and if it violated the Administrative Procedure Act. It also challenged whether substantial evidence supports two ancillary provisions of the rule: allowing workers who undergo medical examinations to keep the results confidential from their employers; and prohibiting employers from using dry cleaning methods unless doing so is infeasible.

Labor unions challenged two parts of the silica rule: the requirement that medical surveillance for construction workers be provided only if the employee must wear a respirator for 30 days for one employer in a one-year period; and the absence of medical removal protections. The court rejected the first, but asked for an explanation of the second.

New and revised fact sheets on silica now available

More than a dozen fact sheets that provide guidance on the respirable crystalline silica standard for construction have been released.

Redesigned webpages make it easier to find training resources

Employers and employees can get information on job safety classes, trainers, tools, and 10-hour and 30-hour cards on the redesigned training webpage.

Tips to protect workers from winter hazards

The Winter Weather webpage provides information on protecting employees from hazards while working outside during severe cold and snow storms, including information on staying safe while clearing heavy snow from walkways and rooftops.

Alliance participants issue alert on use of multi-gas monitors in the oil and gas industry

A new hazard alert explains how multi-gas monitors can protect workers from atmospheric hazards in oil and gas operations.

Enforcement notes


  • Following the collapse of a temporary mold and vertical shoring at an Oakland construction site, which hospitalized 13 workers, Cal/OSHA issued serious and serious accident-related citations to subcontractors Largo Concrete Inc. and N.M.N. Construction Inc. for $73,365 and $70,320, respectively. General citations were issued to general contractor Johnstone Moyer Inc. for $3,630.


  • Inspected under the NEP on Trenching and Excavation, Tallahassee-based, R.A.W. Construction LLC faces proposed penalties of $148,845 for exposing its employees to trench collapse hazards.


  • Inspected under the NEP on Trenching, Dustcom Limited Inc., a Garden City construction company, was cited for failing to protect its employees from trench collapse hazards and faces proposed penalties of $130,552.


  • Three companies working on the renovation of Chicago’s Old Post Office were cited for failing to comply with respiratory protection, provide training, and properly handle PPE. American Demolition was also cited for failing to establish a written lead compliance program. Proposed penalties for American Demolition Corporation, Valor Technologies Inc., and Tecnica Environmental Services Inc. are $105,765, $64,538, and $50,194, respectively.


  • A Jeffersonville home and farm supply center, Rural King Supply, is facing proposed fines of $14,000 after state safety inspectors allegedly found elevated carbon monoxide levels at the facility due to emissions from improperly maintained forklifts.


  • A comprehensive settlement has been reached with Bartlett Grain Company LP requiring the company to implement safeguards, training, and audit procedures at its 20 grain handling facilities in six states.The agreement resolves contested citations issued in April 2012 after six individuals were killed and two injured as a result of an explosion at the Atchison grain elevator. Bartlett Grain has also agreed to pay $182,000 in penalties.


  • MIOSHA issued a second Cease Operations Order, the strongest enforcement action the agency can levy, against Sunset Tree Service & Landscaping, LLC of Bay City for continuing to operate without abating hazards on the jobsite.


  • An administrative law judge of the OSHRC affirmed citations issued against Wentzville-based Auchly Roofing Inc. for failing to use fall protection, but reduced the penalties from $7,482 to $2,494 based on the small size of the employer, good faith safety efforts, and a clean record for 20 years. The company contested the citations, arguing that the violations were de minimis in nature and that compliance with the fall protection standards cited presented a greater hazard to the employees.

New York

  • A jury and judge ordered Albany-based asbestos abatement and demolition company, Champagne Demolition, LLC and its owner, Joseph A. Champagne, to pay $173,793.84 to a former employee who was fired in June 2010 after reporting improper asbestos removal practices at a school worksite in Gloversville.


  • US Environmental Inc. was cited for 12 safety violations, including willfully exposing workers to confined space and fall hazards at its Downingtown location. Proposed penalties are $333,756.
  • The owner of Pittsburgh-based, A Rooter Man, pleaded guilty in federal court to a charge of willfully violating an OSHA regulation, resulting in the death of a worker. Sentencing, which could include prison, is scheduled for February 2018.


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OSHA alert – Recordkeeping changes

OSHA Form 300A posting deadline February 1, 2018

This month, all employers required to keep Form 300, the Injury and Illness Log, should be reviewing the Log to verify that entries are complete and accurate and correcting any deficiencies. The annual summary of injuries and illnesses recorded on OSHA Form 300A, Summary of Work-Related Injuries and Illnesses, must be posted where notices are customarily located, no later than February 1, 2018 and kept in place until April 30. Even if there were no recordable incidents in 2017, companies required to maintain records still must post the summary with zeros on the total lines. Copies should be made available to any employee who might not see the summary (such as a remote employee who works from home).

When an accident occurs, an employer must document a recordable injury or illness on the OSHA Form 300 log within seven days. Employers should pay careful attention to their logs and the work relatedness of safety incidents, particularly in light of the electronic submission rule. Some employers tend to focus on medical treatment or days away from work, rather than beginning with – was this work related? The OSHA Regulation 29 C.F.R. §1904.7 contains an in-depth overview of recordable injuries and illnesses. Additional information on determining medical treatment and first aid can be located at 29 C.F.R. §1904.7(b)(5).

Standard interpretations on recordkeeping issued in 2017 include:

  • Determining if the employees experienced an injury or illness due to an exposure.[1904; 1904.7(b)(7); 1904.46]
  • Clarification of 1904.31 regarding who is responsible for recording injuries and illnesses when supervision is shared by a prime contractor and subcontractors. [1904.31]

A Form 300 log is required for each physical establishment location that is expected to be in operation for at least one year. Form 300A summarizes the total number of fatalities, missed workdays, job transfers or restrictions, and injuries and illnesses as recorded on Form 300. A company executive, as defined by OSHA, must certify the summary. Employers must keep the records for five years following the calendar year covered by them, and if the employer sells the business, he or she must transfer the records to the new owner.

While the future of the Improve Tracking of Workplace Injuries and Illnesses is uncertain, the Injury Tracking Application (ITA) stopped accepting 2016 data as of January 1, 2018. Employers with 250 or more employees that are subject to OSHA’s recordkeeping regulation must electronically submit information from the Form 300, Form 300A, and the Form 301 to OSHA by July 1, 2018. Establishments with 20-249 employees in certain high-risk industries such as agriculture, forestry, construction and manufacturing, must submit information electronically from Form 300A by July 1, 2018. OSHA then would make the information public on its website.


List of top ten violations includes Fall Protection – Training Requirements for first time

While the list of the Top 10 violations for FY2017 remains largely unchanged from 2016, there is a newcomer in ninth place – Fall Protection – Training Requirements.

The full list:

  1. Fall Protection – General Requirements (1926.501) – 6,887
  2. Hazard Communication (1910.1200) – 4,652
  3. Scaffolding (1926.451) – 3,697
  4. Respiratory Protection (1910.134) – 3,381
  5. Lockout/Tagout (1910.147) – 3,131
  6. Ladders (1926.1053) – 2,567
  7. Powered Industrial Trucks (1910.178) – 2,349
  8. Machine Guarding (1910.212) – 2,109
  9. Fall Protection – Training Requirements (1926.503) – 1,724
  10. Electrical – Wiring Methods (1910.305) – 1,530

For more information, the National Safety Council (NSC) provides a detailed description of the specific violations and a summary of the largest penalties.

If you are looking for a way to simply your injury and work comp claims reporting, please feel free to check out our free integrated first report of injury and OSHA recordkeeping software at http://www.stopbeingfrustrated.com/osha-logs.html.

For Cutting-Edge Strategies on Managing Risks and Slashing Insurance Costs visit www.StopBeingFrustrated.com

OSHA watch

Deadline for electronic injury, illness reports was Dec. 31, next date is Jul 1, 2018

OSHA delayed the OSHA 300A upload compliance date until Dec. 31, 2017 for employers to electronically submit injury and illness data for 2016 calendar year. However, OSHA will require 2017 Injury Data to be reported by July 1st, 2018.

If you want to be able to more easily and efficiently manage reporting work related injuries and OSHA recordables, please feel free to look at our Free OSHA Software at http://www.stopbeingfrustrated.com/osha-logs.html

Crane operator certification requirements delayed until 2018

As expected, the crane operator certification requirements were delayed by one year, when a final rule was published in the Nov. 9 Federal Register – just one day before the regulation was set to go into effect. “The agency intends to propose removing the capacity component of certification,” according to the Federal Register notice.

New fact sheets available on protecting workers in the shipyard and maritime industries

Four new fact sheets on protecting workers from common hazards found in the shipyard and maritime industries are available:

Enforcement notes


  • Six employers cited over $240,000 for exposing workers to Valley Fever on a solar project construction site in Monterey County. General contractor and subcontractors McCarthy Building Cos. Inc., Papich Construction Co. Inc., Granite Construction Co. Inc., Sachs Electric Co., Dudek, and Althouse and Meade Inc. were cited.


  • Tampa Electric Co. faces over $28,000 in fines for exposing workers to a hazardous release of a chemical refrigerant. Citations were also issued to Largo-based security services provider Critical Intervention Services, for not developing or implementing a written hazard communication program and failing to provide information and training on hazardous chemicals in the workplace. The company faces $25,350 in proposed penalties.


  • Buford-based auto parts manufacturer, Elringklinger USA Inc., was cited for exposing workers to electrical, fall, and noise hazards and faces fines of $308,906. The investigation followed two incidents, one involving an amputation of an index finger. Citations included failing to install machine guarding, preventing unauthorized employees from performing tasks that require the control of electrical hazards, and protecting workers from excessive noise exposure.


  • A 59-year-old worker was killed at the Amazon warehouse in Plainfield, when his head was crushed by a forklift. In its four-charge complaint, the Indiana DOL cited failure to train employees on lock-out tag-out procedures, as well as failure to follow those procedures and fined Amazon $28,000.


  • Lynnway Auto Auction Inc. faces fines of $267,081 for electrical, struck-by, and other hazards at its auto auction facility in Billerica. Five people were struck by a sport utility vehicle and died as a result of their injuries. Inspectors also conducted a joint employer inspection, and determined that temporary workers from TrueBlue Inc. – doing business as PeopleReady – were also exposed to struck-by hazards. The agency cited the Dover, New Hampshire, staffing firm for one serious violation for a struck-by hazard, and proposed a penalty totaling $12,675.


  • New Albany-based Custom Nonwoven Inc., a subsidiary of Korea Synthetic Fiber, faces penalties of $220,544 for willfully exposing its workers to unguarded machines, electrocution, and burns from exposed electrical wires and control cabinets, and falls from walkways that were not equipped with guardrails.


  • Anderson Foot and Ankle Clinic, a Rolla-based podiatry clinic, was cited for potentially exposing employees to infectious materials, and for violations of the hazard communication standard and faces penalties totaling $93,074.


  • A Dorchester-based Farmers Cooperative faces $373,911 in proposed penalties for failing to protect workers from grain bin entrapment and engulfment hazards. The cooperative was cited for two willful, one repeat, and four serious safety violations of the agency’s grain handling standards.
  • Bimbo Bakeries USA faces $122,625 in proposed penalties for exposing workers to multiple hazards at its Bellevue commercial bakery. Investigators cited the bakery for three repeat and three serious violations including lack of machine guarding, failing to provide fall protection, and using a damaged electrical panel box.

New York

  • Trade Fair Supermarkets faces $505,929 in proposed penalties for exposing employees to safety and health hazards at three of its locations in Queens. Inspectors found blocked exit routes, saw blades without safety guards, and a lack of eyewash stations needed in the event of exposure to corrosive substances. The company also failed to train employees on, and provide safety data sheets for, hazardous chemicals used in the stores.


  • Didion Milling Inc., a corn milling facility faces over $1.8 million in penalties following a fatal grain dust explosion that killed five workers and injured 12 others. Inspectors found that the explosion likely resulted from Didion’s failures to correct the leakage and accumulation of highly combustible grain dust throughout the facility and to properly maintain equipment to control ignition sources. Cited for 14 willful violations, the company was placed in the Severe Violator Enforcement Program.

For Cutting-Edge Strategies on Managing Risks and Slashing Insurance Costs visit www.StopBeingFrustrated.com

OSHA news

Deadline for electronic injury, illness reports was Dec. 15 now Dec. 31.

OSHA delayed reporting requirement until Dec. 31 for employers to electronically submit injury and illness data. The agency’s final rule was published in the Nov. 24 Federal Register. According to OSHA, the delay allows “affected employers additional time to become familiar with a new electronic reporting system.”

The Improve Tracking of Workplace Injuries and Illnesses final rule, as it is formally known, mandates that employers with 250 or more workers, as well as those with 20 to 249 employees in high-risk industries such as agriculture, forestry, construction and manufacturing, electronically submit OSHA’s Form 300A. OSHA then would make the information public on its website.

OSHA is currently reviewing the other provisions of its final rule and intends to publish a notice of proposed rule-making to reconsider, revise or remove portions of that rule in 2018.

For the next reporting deadline of July 1, 2018, if you want to be able to more easily and efficiently manage reporting work related injuries and OSHA recordables, please feel free to look at our Free OSHA Software at http://www.stopbeingfrustrated.com/osha-logs.html


Few citations given under the anti-retaliation provisions of the electronic record-keeping rule

The electronic record-keeping rule’s anti-retaliation provisions went into effect Dec. 1, 2016 and required employers to inform employees of their right to report work-related injuries and illnesses free from retaliation, specifically barred employers from retaliating against employees, and mandated that employer procedures to report work-related injuries and illnesses must be reasonable and not discourage reporting. Employers were encouraged to evaluate employee incentive programs related to injuries to be sure they did not violate the rule.

In addition, OSHA’s interpretations of the anti-retaliatory provisions warned that post-incident drug and alcohol testing could deter employees from reporting injuries and illnesses. Therefore, post-injury drug and alcohol testing policies should be limited to situations in which there is a reasonable possibility that an employee’s drug or alcohol use was a contributing factor to a reported incident.

These provisions were controversial and the basis of some litigation against the rule. However, according to a recent article in Business Insurance, OSHA has issued only a handful of citations under anti-retaliation provisions since they went into effect last year, with several open investigations.

The article noted that Ann Rosenthal, associate solicitor for the division of occupational safety and health with the Labor Department’s Office of the Solicitor in Washington, told attendees of the American Bar Association’s annual Labor and Employment Law Conference some citations were issued against unnamed employers related to incentive programs in which employees were penalized for injury and illness reporting. This included one employer whose program gave bonuses to employees who did not report lost-time days while those who reported them did not get bonuses. But several employers quickly settled these complaints by agreeing to change their policies and giving employees the incentives. “The rule can’t really outlaw the incentive programs,” Ms. Rosenthal said. “You can have the policy – you just can’t apply it to penalize the workers who report the injuries.”

She also noted she was not aware of a single drug testing case under the federal OSHA plan since the anti-retaliation provisions went into effect. Even though this information is encouraging for employers, it does not mean the rule can be ignored. Implemented properly and in compliance with the rule, incentive programs and post-accident drug testing are possible.
Fatality and serious injury reporting rule lessons from past three years

OSHA’s Fatality & Significant Injury Reporting Rule, which went into effect January 1, 2015, required employers to report all work-related fatalities within 8 hours and all work-related inpatient hospitalizations, amputations and losses of an eye within 24 hours. A recent webinar by Conn Maciel Carey, a boutique law firm focused on Labor & Employment, Workplace Safety, and Litigation, noted that each year the rule has been in effect, the number of reports has increased. This, in spite of the fact that overall workplace injuries have declined.

Through October 2017, there were 7,248 hospitalizations reported and 2,403 amputations reported. On an annualized current year basis, this is projected to be 11,581 total reports, compared to 10,395 in 2015. Once a report is made, one of three things happen: a mandatory inspection occurs, the Area Director has discretion to decide a course of action, or a rapid response investigation letter is sent. In 2017, there is a 47% inspection rate for reported amputations and a 26% inspection rate for fatalities.

In the webinar, Conn Maciel Carey noted that there are several instances where reports are submitted when they are not required under the rule. For example, the rule requires reporting “formal admission to the inpatient service of a hospital or clinic for care or treatment.” It does not include admission for observation or testing (even after receiving medical treatment in ER), outpatient care or care in a hospital prior to formal admission, and no longer requires overnight stay. An example they obtained from OSHA:

“Employee breaks leg, goes to ER where he begins to bleed out. ER replenishes blood before setting leg, but sends patient from ER to a ward where he is admitted for monitoring because of blood loss – NOT Reportable”

Timing is also a source of non-mandatory reporting. Injuries/fatalities are reportable only if:

  • Fatality results within 30 days of the day of the incident
  • Hospitalization occurs within 24 hours of the incident
  • Amputation / eye loss occurs within 24 hours of incident

Hospitals will often delay admissions because reimbursements for emergency services are higher or they may do major medical treatment in the emergency room followed by in-patient admission for observation only. For this reason, it is important to determine if the incident is truly reportable before making the report.

In addition to the over reporting of hospitalizations, other common mistakes include failing to report minor fingertip amputations, reporting non-employee injuries, making verbal or written admissions in the report, and only identifying “employee misconduct” as the reason. It’s important to note, that California has stricter rules and the federal rules should not be followed there.

For Cutting-Edge Strategies on Managing Risks and Slashing Insurance Costs visit www.StopBeingFrustrated.com

OSHA watch

Preliminary list of top ten violations includes Fall Protection – Training Requirements for first time

While the preliminary list of the Top 10 violations for Fiscal Year 2017 remains largely unchanged from 2016, there is a newcomer in ninth place- Fall Protection – Training Requirements.

The full list:

  1. Fall Protection – General Requirements (1926.501) – 6,072
  2. Hazard Communication (1910.1200) – 4,176
  3. Scaffolding (1926.451) – 3,288
  4. Respiratory Protection (1910.134) – 3,097
  5. Lockout/Tagout (1910.147) – 2,877
  6. Ladders (1926.1053) – 2,241
  7. Powered Industrial Trucks (1910.178) – 2,162
  8. Machine Guarding (1910.212) – 1,933
  9. Fall Protection – Training Requirements (1926.503) – 1,523
  10. Electrical – Wiring Methods (1910.305) – 1,405

Enforcement policy for construction silica standard announced: 30-day grace period

A memorandum explaining how the enforcement for the construction silica standard would proceed was issued shortly before the effective date of Sept. 23, 2017. For the first 30 days of enforcement employers who, in good faith, are trying to comply with the requirements of the standard but are unable to reduce exposures below the new permissible exposure limit or are unable to fully comply with Table 1 will not be issued citations. Instead, they will receive “compliance assistance and outreach.”

If during an inspection it appears that an employer is not making any efforts to comply with the standard, air monitoring will be conducted and citations may be issued. Additionally, the memorandum notes that inspection and citation guidance for its compliance officers and a compliance directive will soon follow.

One-year delay on crane operator certification requirements sought

In 2010 a final rule regulating cranes and derricks in the construction industry, Cranes and Derricks in Construction, Subpart CC (29 C.F.R. 1926.1400, et al.) was promulgated and set to go into effect in November 2014. After a public comment period and concerns expressed by stakeholders, the agency extended the crane operator certification requirements from November 10, 2014 to November 10, 2017. During this three-year period, the intention was to develop a new standard that addressed operator qualification requirements. It’s now proposed to further delay the November 10, 2017 deadline by one year to November 10, 2018 to address the stakeholder concerns.

New PSM guide focuses on petroleum refineries

A guide intended to help oil refineries comply with the Process Safety Management Standard (1910.119) makes recommendations for employers to review their PSM programs to ensure violations are not present, and suggests ways to avoid specific violations within each PSM area.

Latest ‘Fatal Facts’ examines fall from forklift-elevated pallet

Detailing the death of a full-time warehouse worker who was killed after falling seven feet from a pallet to a lower level, the latest Fatal Facts, warns employees and employers about the dangers of falling from pallets raised by forklifts and advises employers on how to prevent such fatalities.

MIOSHA offers kit, video to help medical and dental offices comply with regs

The Michigan Occupational Safety and Health Administration has released a toolkit and video to help doctors and dentist offices comply with state health standards. The kit includes a compliance checklist for applicable MIOSHA health standards, posters, sample templates for required written policies, and training programs. To download the kit, visit www.michigan.gov/miosha, click on “A to Z Topic Index” on the left side of the page and then scroll to the letter “D” to find a section for “Doctors/Dentist Office.”
Enforcement notes


  • Cal/OSHA issued five citations and $51,160 in penalties to Aero Pacific Corp. in Placenta for safety violations after a worker was struck and killed by a moving spindle. Inspectors determined that, among other violations, the company failed to identify and correct machinery hazards in the workplace, and train workers on the control of hazardous energy.
  • Cal/OSHA issued five citations and $68,435 in penalties to RWC Building Products in San Marcos following the death of a worker who fell from a truck-mounted conveyor belt. Inspectors concluded that the company failed to ensure that workers were wearing approved personal fall protection equipment while unloading material onto a roof, did not perform periodic inspections to identify unsafe conditions and work practices at job delivery sites, and failed to provide effective training for supervisors to recognize safety and health hazard.


  • Following an inspection initiated by a complaint of unsafe work conditions, Hometown Foods USA dba Bagelmania Inc. in Medley was cited for 16 safety and health violations, including failing to ensure proper machine guarding on equipment, provide personal protective equipment, develop a lockout/tagout program, and develop a hearing conservation program. Proposed penalties are $129,145.

Illinois / Georgia

  • The Chicago facility of Atlanta-based BWAY Corp., a manufacturer of rigid metal, plastic, and hybrid containers, is facing $503,380 in proposed penalties and has been placed in the Severe Violator Program after four separate reports of employee injuries, three of which involved amputations. Included in the violations were repeated citations for failing to train workers in lockout/tagout procedures that prevent unintentional machine movement and inadequate machine guarding on a mechanical power press, belts and pulleys, and chains and sprockets.


  • Minnesota OSHA issued three citations and $184,100 in penalties to Visu-Sewer Inc., in Saint Paul for safety violations when a worker was fatally injured after becoming entangled in sewer lining equipment. Inspectors determined that the company failed to train workers in the recognition and avoidance of unsafe conditions, did not equip a hydraulic roller to cut off power, and allowed workers to use equipment modified from the manufacturer’s specifications for safe operation.


  • An administrative law judge of the OSHRC affirmed in part and vacated in part citations against a residential roofing contractor, Papillion-based Elite Builders Inc., that claimed the citations were issued with vindictive motivation and with an improperly executed warrant. The company was inspected twice and on the second inspection, it refused entry to the site and told the inspector to get a warrant. The judge rejected the arguments about the validity of the warrant and vindictive prosecution, but found the agency failed to prove the company did not provide adequate fall protection training as well as violations related to scaffolding construction and guardrails.


  • The OSHRC upheld a willful safety violation and vacated another violation in an incident that caused a four-story freestanding wall to fall on top of an adjacent Salvation Army retail store, killing six people inside and injuring 12 others. After the contractors were prosecuted criminally, the Commission settled the case with the general contractor, and then addressed the contractor who did the demolition. The central issue of the case was whether the contractor, Mr. Benschop, was an employer with an employee at the worksite or an employee of the general contractor. The Commission found that he was an employer and had willfully placed his employee in danger, but it applied a 20% discount to the penalty due to the small size of the employer, resulting in a final assessed penalty of $56,000.

For Cutting-Edge Strategies on Managing Risks and Slashing Insurance Costs visit www.StopBeingFrustrated.com

HR Tip: Enforcement of joint employer liability for temporary worker safety remains strong

While OSHA has moved away from an enforcement-based strategy on many initiatives, OSHA’s deputy director of the Directorate of Enforcement Programs made it clear at a recent conference that the agency is continuing to enforce joint employer liability for temporary worker safety and plans to issue more guidance for employers. The agency conducted nearly 600 inspections of workplaces with temporary workers in fiscal year 2016 and is continuing to conduct these inspections.

In addition, in every inspection compliance officers are directed to look for the presence of temporary workers and the unique hazards they are exposed to. OSHA has issued seven bulletins providing guidance to employers as part of the temporary worker initiative on injury and illness record-keeping requirements, personal protective equipment, whistleblower protection rights, safety and health training, hazard communication, bloodborne pathogens, and powered industrial trucks training.

For Cutting-Edge Strategies on Managing Risks and Slashing Insurance Costs visit www.StopBeingFrustrated.com

EEOC ordered to reconsider wellness rules

The Equal Employment Opportunity Commission’s (EEOC’s) rules about the fees employers can assess workers who do not participate in wellness programs were ruled arbitrary by the U.S. District Court for the District of Columbia on Aug. 22. Rather than vacate the rules, the court sent them back to the agency for redrafting. The court’s decision does not vacate the EEOC rules and employers are obligated to comply with existing rules, but should be alert to future changes.

Work conditions ‘unpleasant, potentially hazardous’ for more than half of Americans: study

Nearly 55 percent of American workers claim they encounter “unpleasant and potentially hazardous” conditions on the job, according to a study from nonprofit research institute RAND Corp., Harvard Medical School, and the University of California, Los Angeles. Nearly 1 in 5 workers reported exposure to a “hostile or threatening social environment at work” and 1 in 4 said they do not have enough time to complete job tasks.

National survey on fatigue indicates it is a hidden, but potentially deadly workplace epidemic

Some 43 percent of Americans say they do not get enough sleep to mitigate critical risks that can jeopardize safety at work and on the roads, including the ability to think clearly, make informed decisions, and be productive, according to a new National Safety Council survey-based report, Fatigue in the Workplace: Causes & Consequences of Employee Fatigue. An estimated 13 percent of workplace injuries could be attributed to fatigue.

CDC launches website on worker wellness programs

To help employers start or expand employee health promotion programs, the Centers for Disease Control and Prevention has created the Workplace Health Resource Center website.

New app from NIOSH: Lifting Equation Calculator

In an effort to prevent work-related musculoskeletal disorders, NIOSH has released a mobile app based on the Revised NIOSH Lifting Equation, an internationally recognized standard for safe manual lifting.

Updated ergo guide from NIOSH offers strategies for preventing MSDs

The NIOSH Musculoskeletal Disorders Research Program has updated its guidance document on the formation and function of ergonomics programs. Intended for both workers and employers, it provides strategies for identifying and correcting ergonomic hazards, as well as references, forms and questionnaires.

Guide offers best practices for safely using bleach to clean and sanitize

A new safety guide published by the Michigan State University College of Human Medicine, Occupational and Environmental Medicine Division offers best practices for workers exposed to bleach, including janitors, housekeepers, environmental engineers, and hospital, restaurant, maintenance and agricultural workers.

FMCSA, FRA withdraw rulemaking on sleep apnea

The Federal Motor Carrier Safety Administration and the Federal Railroad Administration have withdrawn an advance notice of proposed rulemaking on obstructive sleep apnea. “The agencies … believe that current safety programs and FRA’s rulemaking addressing fatigue risk management are the appropriate avenues to address OSA,” FMCSA and FRA stated in a notice published in the Aug. 4 Federal Register.

Operation Safe Driver Week set for mid-October

Law enforcement officers are expected to keep a particularly sharp eye on the roads Oct. 15-21 during the Commercial Vehicle Safety Alliance’s Operation Safe Driver Week. Officers will be looking for commercial motor vehicle and passenger vehicle drivers engaging in dangerous behaviors such as speeding, texting, following too closely and not wearing seat belts.

Opioids updates

  • One in 12 US physicians received a payment involving an opioid during a 29-month study of pharmaceutical industry influences on opioid prescribing, according to researchers who will publish their findings in September’s American Journal of Public Health. During the study, 375,266 non-research opioid-related payments were made to 68,177 physicians, totaling $46,158,388.
  • A study from the Worker’s Compensation Research Institute examines the prevalence and trends of longer-term dispensing of opioids in 26 state workers’ compensation systems. It also documents how often the services (i.e., drug testing, psychological evaluation, and treatment, etc.) recommended by treatment guidelines were used for managing chronic opioid therapy.

Study casts doubts on effectiveness of marijuana in combatting chronic pain

Research funded by the U.S. Department of Veterans Affairs was published on the Annals of Internal Medicine website. Limited evidence suggests that cannabis may alleviate neuropathic pain in some patients, but insufficient evidence exists for other types of chronic pain. There was also sufficient evidence to conclude that cannabis use among the general population probably increased the risk of car accidents, psychotic symptoms, and short-term cognitive impairment. It was noted more research is needed.

CSB releases animated video on Louisiana refinery fire

The Chemical Safety Board has released an animated video that examines the cause of last year’s ExxonMobil refinery fire, which severely burned four workers in Baton Rouge, LA.

State News


  • New regulations aimed at preventing incidents such as the 2012 Chevron Corp. fire at oil refineries will take effect Oct. 1.
  • Ratings bureau proposes small workers’ comp premium increase for 2018.
  • Workers’ comp bill safeguarding pregnant women put on hold.


  • NCCI recommends comp premium decrease of 9.6% effective Jan. 1, 2018.


  • The National Council on Compensation Insurance (NCCI) recommends a 10.9% workers’ compensation premium rate decrease for Illinois.
  • Governor vetoes state-funded comp insurance plan.


  • Effective August 1, patients with post-traumatic stress disorder can purchase medical marijuana.
  • Department of Labor and Industry adopted the final rule from the federal Occupational Safety and Health Administration about walking-working surfaces and personal fall-protection systems.

New York

  • Employers should prepare to comply with the Paid Family Leave that goes into effect Jan. 1, 2018.


  • The Compensation Rating Bureau filed an emergency 6.06% loss cost increase in the wake of a state Supreme Court decision that blocks impairment rating evaluations.


For Cutting-Edge Strategies on Managing Risks and slashing Insurance Costs visit www.StopBeingFrustrated.com

Things you should know

Return to work more likely with less-invasive back surgery

A recent study of 364 Ohio workers diagnosed with degenerative spinal stenosis who underwent back surgery found that those who underwent primary decompression, a surgical procedure to alleviate pain caused by pinched nerves, had higher return to work rates than those who had the more-invasive, more-expensive fusion surgery. The study was published in July’s Spine medical journal.

Ohio adopts rule requiring initial conservative back treatment

The Ohio Bureau of Workers Compensation’s new spinal fusion rule requires workers to first undergo at least 60 days of comprehensive conservative care, such as physical therapy, chiropractic care and rest, anti-inflammatories, ice and other non-surgical treatments before lumbar surgery. Conditions that require immediate intervention, such as spinal fractures, tumors, infections and functional neurological deficits, are exceptions to the rule.

DOL will again issue opinion letters on FMLA, FLSA and other laws

The U.S. Department of Labor will again issue opinion letters to assist employers and employees in interpreting laws like the FMLA and Fair Labor Standards Act. The DOL has established a new webpage to submit requests for opinion letters and to review old opinion letters.

New I-9s must be used beginning Sept. 18, 2017

USCIS released a revised version of Form I-9, Employment Eligibility Verification, on July 17. Employers can use this revised version or continue using Form I-9 with a revision date of 11/14/16 N through Sept. 17. On Sept. 18, employers must use the revised form with a revision date of 07/17/17 N. Employers must continue following existing storage and retention rules for any previously completed Form I-9. Changes to the form are considered minor.

Free safe driving kit from National Safety Council

The Safe Driving Kit, sponsored by Wheels, Inc., aims to create safer roads and protect employees through multi-media resources and engaging materials. The kit addresses the key contributors to car crashes, including distraction, alcohol, other drugs, fatigue and seatbelt use. It also brings attention to lifesaving technology that helps prevent crashes.

Workers’ comp making more progress in reducing opioid prescriptions

According to research released by the Centers for Disease Control and Prevention (CDC), the average days’ supply per opioid prescription increased from 13 days in 2006 to almost 18 days in 2015. Meanwhile, nearly half of the states included in a study of opioid prescribing in workers’ compensation cases have seen reductions in the frequency and strength of opioids given to injured workers, according to a study released in June by the Cambridge, Massachusetts-based Workers Compensation Research Institute.

More than 1,000 unsafe CMVs pulled from service during ‘Operation Airbrake’

Brake violations prompted the removal of 1,146 commercial motor vehicles from service as part of a recent unannounced, single-day inspection blitz across the United States and Canada on May 3. According to the Commercial Vehicle Safety Alliance (CVSA), 12 percent of CMVs inspected were taken out of service for brake violations, and 21 percent were removed for other violations.

More than half of workers aren’t trained on first aid, CPR: survey

About 10,000 cardiac arrest situations occur in the workplace each year, yet only 45 percent of U.S. employees have been trained in first aid – and only 50 percent of workers know where to find an automated external defibrillator – according to the results of a survey recently conducted by the American Heart Association.

‘Sleeping in’ on weekends may be bad for your health: study

Going to bed later and waking up later on weekends than during the week – also known as social jet lag – may be linked to poor health and higher levels of sleepiness and fatigue, according to the preliminary results of a study conducted by researchers at the University of Arizona. Results showed each hour of social jet lag was linked to an 11.1 percent increase in the chances of developing heart disease. In addition, participants who experienced social jet lag were 28.3 percent more likely to report their health as “fair/poor.” The study abstract was published in an online supplement to the journal Sleep.

Safety measures lacking on plastic injection molding machines, peripheral equipment: study

Factories with plastic injection molding machines that interact with peripheral equipment – such as robots or conveyors – could do more to improve safety, Canadian scientific research organization IRSST concluded in a recent study. The study was published in May along with a technical guide.

State news

New rule requires preauthorization of all compounds, regardless of price – Florida

  • To clear up a “misunderstanding” among stakeholders, the Florida Division of Workers’ Compensation has clarified that all compounded drugs, regardless of cost, are now subject to preauthorization.

Legislators pass budget without workers’ comp reform – Illinois

  • While the state faces one of the highest workers’ compensation insurance rates in the country, legislators were unable to reach a consensus on reforms.

Prescription drug monitoring program implemented – Missouri

  • Missouri was the only state that lacked a prescription drug-monitoring program prior to last month when the governor signed an executive order directing the Department of Health and Senior Services to create a prescription drug-monitoring program.

Workers’ comp rules tightened – Missouri

  • The new legislation redefines “maximum medical improvement (MMI)” as the point when the condition of an injured employee can no longer improve, and bans any claims for benefits beyond that time period. It also puts more emphasis on the employee proving an employer discriminated against them after they filed a workers’ compensation case.

4.5% decrease in workers’ comp for businesses – New York

  • The New York Department of Financial Services has approved the 4.5% workers compensation premium rate decrease recommended by the New York Compensation Insurance Rating Board effective Oct. 1.

For Cutting-Edge Strategies on Managing Risks and slashing Insurance Costs visit www.StopBeingFrustrated.com