Mzydq osha update_positive_developments_for_employers_under_trump_administration

2018 HR INDIANA ANNUAL CONFERENCE
Date of Presentation
Title of Presentation
Name of Presenter
Presenter Contact Info
August 20, 2018
OSHA Update: Positive Developments
for Employers the Trump
Administration
Mark Kittaka
Barnes & Thornburg LLP
260-425-4616
mark.kittaka@btlaw.com

Mark S. Kittaka
Partner
260-425-4616
260-424-8316 Fax
mark.kittaka@btlaw.com
888 S. Harrison Street
Suite 600
Fort Wayne, Indiana 46802
Mark S. Kittaka is a partner and the administrator of the Labor and
Employment Law Department of Barnes & Thornburg LLP’s Fort Wayne,
Indiana office. He also practices out of the firm's Columbus, Ohio office. Mr.
Kittaka’s practice covers all areas of labor and employment law including
federal and state litigation concerning discriminatory practices and retaliation
claims, including, but not limited to: Title VII race, sex, color, and religious
discrimination claims; the Americans with Disabilities Act (ADA) (disability
discrimination, reasonable accommodation, interactive process); Age
Discrimination in Employment Act (ADEA); the Family and Medical Leave Act
(FMLA); the Fair Labor Standards Act (FLSA); and the Employee Retirement
Income Security Act (ERISA).
In addition, Mr. Kittaka handles wrongful discharge claims under state laws
(including worker’s compensation retaliation claims); covenants not to compete
and trade secret disputes, collective bargaining negotiations; collective
bargaining agreement administration; representation in grievance and
arbitration proceedings; and represents clients before a variety of
administrative agencies including the Equal Employment Opportunity
Commission (EEOC), the National Labor Relations Board (NLRB), the
Department of Labor (DOL), Indiana Civil Rights Commission (ICRC),
Metropolitan Human Relations Commission (MHRC), Occupational Safety and
Health Administration (OSHA), and the Department of Workforce Development
(DWD).
In addition to litigation in judicial and administrative forums, Mr. Kittaka also
conducts supervisory training for employers in the following areas: anti-
harassment training, documentation and discharge, FMLA administration,
union-free training and handling the marginal performer. Mr. Kittaka is also a
regular speaker at both in-house and public seminars. Mr. Kittaka also
provides proactive advice with respect to employment agreements (including
noncompete agreements, non-disclosure and confidentiality agreements, etc.),
policies, procedures and handbooks. He also regularly consults with
employers on issues relating to leave of absence issues (i.e., FMLA, ADA,
short term disability or worker’s compensation overlap), OSHA compliance,
Worker Adjustment and Retraining Notification Act (WARN) and Reduction in
Force (RIF) planning.
Since 2017, Mr. Kittaka has been recognized in The Best Lawyers in America
for his work in employment law - management.
Mr. Kittaka has significant experience representing clients in OSHA matters
involving serious injuries and/or deaths in both state plan and federal OSHA
Bar Admissions
Indiana, 1992
Ohio, 2009
Other Court Admissions
U.S. District Court for the
Northern District of Indiana
Southern District of Indiana
Northern District of Ohio
Southern District of Ohio
7th Circuit Court of Appeals
11th Circuit Court of Appeals
Education
J.D., Washington University,
1992
B.A., Indiana University -
Bloomington, 1989

states across the United States. This includes regulatory compliance,
representation in on-site inspections, informal conferences, formal
administrative appeals, and defense of whistleblower claims. He has also
represented clients in consumer product safety recalls with the Consumer
Product Safety Commission (CPSC) as well as recalls with automobile
equipment dealing with the National Highway Safety Administration (NHTSA).
Mr. Kittaka is a member of the American Bar Association Labor and
Employment Section, the Indiana State Bar Association, the Allen County Bar
Association, and the National Asian Pacific American Bar Association
(NAPABA). He graduated in 1989 from Indiana University with a B.A. in
English Literature and Japanese. He received his J.D. from Washington
University School of Law in 1992. Mr. Kittaka is admitted to practice in the
states of Indiana and Ohio, the U.S. District Courts for the Northern and
Southern Districts of Indiana, the U.S. District Courts for the Northern and
Southern Districts of Ohio, as well as the 7th and 11th Circuits.

Stay connected
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and employment law.
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including breaking labor and employment topics
www.btlaw.com
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www.btcurrents.com
Traditional Labor Law blog
www.btlaborrelations.com
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@BTLawE

CONFIDENTIAL © 2018 Barnes & Thornburg LLP. All Rights Reserved. This page, and all information on it, is confidential, proprietary and the property of Barnes & Thornburg LLP, which may not be disseminated or disclosed to any person or
entity other than the intended recipient(s), and may not be reproduced, in any form, without the express written consent of the author or presenter. The information on this page is intended for informational purposes only and shall not be
construed as legal advice or a legal opinion of Barnes & Thornburg LLP.
Regulatory Update
The Electronic Recordkeeping
Regulation

CONFIDENTIAL © 2018 Barnes & Thornburg LLP. All Rights Reserved. This page, and all information on it, is confidential, proprietary and the property of Barnes & Thornburg LLP,
which may not be disseminated or disclosed to any person or entity other than the intended recipient(s), and may not be reproduced, in any form, without the express written consent of
the author or presenter. The information on this page is intended for informational purposes only and shall not be construed as legal advice or a legal opinion of Barnes & Thornburg LLP.
Components of Revised Rule
• Mandatory Electronic Reporting
• Nondiscrimination/Nonretaliation provisions
– Mandatory injury reporting
– Drug-testing policies
– Incentive programs
OSHA Mandatory Electronic Reporting Rule
• 5/11/16 -- OSHA issued final rule for mandatory electronic
reporting:
– Of recordable work-related injuries and illnesses
• Annual basis for establishments with > 250 employees
(300/301 – then 300A annually)
• Annual basis for establishments with > 20 and < 250
employees (300A)
– For 2016 –Both large and small Employers filed 300A summary
only.
– For 2017 info - July 1, 2018 – Orig. 300 logs and 301 incident
reports for large ERs but in 5/18 OSHA website noted they were
not collecting them. 2017 info - only 300A summaries for all ERs;
– All State plans covered as well; and
– For 2018 and thereafter – filing deadline will be March 2 every
year.

Electronic Recordkeeping Developments
• According to DOL records, about 200,000 worksites
may have failed to comply with the new electronic
filing requirement on 12/31/17.
• Another 60,000 summaries were turned in by ERs who
did not have to file.
• Lawsuit filed in Jan. 2018 by advocacy group (Public
Citizen) to turn over 466,000 300A forms filed with
Gov.
• Lawsuit filed 7/25/18 Public Citizen and 2 other health
advocacy groups filed for injunction to compel
employers to file all forms (i.e., 300 logs and 301
incident reports)
Electronic Recordkeeping Developments
• 7/30/18 – Notice of Proposed Rulemaking to
formally remove requirement for large
employers to file 300 logs and 301 incident
reports based on risk of disclosure, cost to
OSHA and reporting burden on employers.
• 60 days (9/28/18) to file comments.
• Many were disappointed it did not address the
non-discrimination provisions.

Other Requirements
• Nondiscrimination/Anti-retaliation provisions
– Mandatory injury reporting policies
– Drug-testing policies
– Safety Financial Incentive programs
7
Nondiscrimination Provisions
• Other Requirements
– Employers must establish a reasonable procedure for
reporting work-related injuries and illnesses and notify
employees about the procedure.
• It is not “reasonable” if it would “deter or discourage a
reasonable employee from accurately reporting a workplace
injury or illness.”
– Employers must inform each employee that
• They have a right to report work-related injuries and illnesses;
• Employers are prohibited from discharging or discriminating
against employees for reporting such injuries or illnesses; and
• Policy implications.

Non-Discrimination Provisions
• Non-Discrimination
– Employers must not discharge or in any manner
discriminate against any employee for reporting a
work-related injury or illness
– May allow for reinstatement/backpay for employees
who have not filed a complaint up to 6 months
(compared to 30 days for 11(c) complaints)
9
Additional Requirements
• Post-accident drug testing
– OSHA warns that blanket policies that require testing of every
employee reporting a work-related injury could be seen as
“retaliation” which could discourage reporting and therefore it
would not be “reasonable”
• In drug testing cases, OSHA will evaluate whether there was
an objectively reasonable basis to test, whether impairment
could have caused or contributed to the incident
• They will consider who you tested (e.g., test the forklift driver
as well as the employee injured)
• Sessions Memo – Atty Gen. rescinded Obama policy of
leniency for marijuana and confirmed it is illegal under
federal law

Safety Incentive Programs
• OSHA has taken the position that certain safety
incentive programs are retaliatory to employees
and discourage reporting.
– Going a set period of time (i.e., a year) without any
recordables = a drawing for a prize or a bonus. Peer
pressure problems
– Even bonuses which are based on a lower rate of
recordables is considered a problem (hourly and
salaried)
– OSHA has been opposed to these since 2012 (Memo
– 3/12/12)
Lawsuit Challenges - Updates
• One in TX and other in OK. One is
administratively closed and other is stayed at
the request of the parties so OSHA can decide
what it wants to do. Updates have been filed
every 90 days.
• New Proposed Head of OSHA (Asst. Sec) –
Scott Mugno (former EHS Dir. Of FedEx) –
approved by Senate committee but not full
Senate yet.
12

Effective Dates
• Electronic recordkeeping – 12/31/17
• Nondiscrimination provisions technically in
effect since 12/1/16 but, it appears not a
priority
• 6/28/17 - Proposed Rule – to “reconsider, revise
or remove other provisions” of the final rule. It
was hoped it would include the non-
discrimination provisions. It did not so . . .
• Still in effect.
13
Recordkeeping Rule (Volks) - Reversal
• 12/16/16 – OSHA issued a new rule in response to
the 2012 D.C. Cir. Opinion in the Volks decision
against OSHA’s position asserting a continuing
violation.
• Was effective 1/18/17.
• Would have changed to 5.5 year SOL instead of 6
mos.
• Congress used the Congressional Review Act to
overturn the regulation and Trump signed into law
4/3/17.
• Great result for ERs – back to 6 mos. SOL

Silica Final Rule
• Final rule issued 3/24/16:
– PEL for Gen. Industry, Construction and maritime is 50
micrograms/m3 - Gen. Indust (50% reduction) /
Construction/Maritime (80% reduction)
• Industries affected:
– Concrete products, Glass manufacturing, Pottery
products, Refractory products, Abrasive blasting, oil
and gas operations – Eff. 6/23/17 (Construction)
• Update: After lawsuits filed, effective date for all
industries began June 23, 2018. 30 day
enforcement launch.
New Walking-Working Surfaces
and Fall Protection Standards

Walking-Working Surfaces/Fall Protection
• 11/17/16 – OSHA issued a significant new final rule
revising and updating Gen. Industry standards on
Walking-Working Surfaces and Fall Protection. It
covers:
– Fixed ladders
– Stairs
– Rope descent systems and
– Fall Protection.
• In the past, general industry fall protection was
either covered under Floor Openings (1910.23) or
PPE (1910.132)
Walking-Working Surfaces/Fall Protection
• First update since 1971
• Slip, trip and fall hazards are leading cause of
deaths and lost workday cases.
• The Rule provides greater flexibility in choosing fall
protection. Currently, guardrails are the primary
protection but now ERs can use different means of
fall protection (i.e., personal fall arrest systems)
• All Subpart D (Walking-Working Surfaces) revised
and Subpart I (PPE) added new section on Personal
Fall Arrest Systems (1910.140)

Fall Protection
• 1910.28 – the ER must provide fall protection from
an unprotected side or edge that is 4 feet or more
above a lower level by one of the following:
– Guardrail systems;
– Safety net systems; or
– Personal fall protection systems, such as personal fall
arrest, travel restrain or positioning systems.
• New section 1910.140 defines performance, care
and use criteria for all personal fall arrest systems.
• OSHA information - https://www.osha.gov/walking-
working-surfaces/index.html
Fall Protection
• Guardrail
• Safety net system
• Personal fall arrest system (i.e., harness,
anchorage, deceleration device, etc).
• Positioning System (i.e., window washers)
• Travel restraint system (i.e., harness, lanyard and
anchorage preventing access to edge)
• Ladder safety system (i.e., carrier (cable or rigid
rail), safety sleeve, lanyard and body harness),
NOT cages and wells

Major Changes
• 1910.140 - adds requirements on the performance,
inspection, use, and maintenance of these systems.
– 1910.140(c)(6) – competent person inspect lanyard before 1st
use
– 1910.140(c)(18) – personal fall protection must be inspected
at the beginning of each shift
• 1910.22(d) - requires that employers inspect walking-
working surfaces regularly and correct or repair as
needed
• 1910.30 – requires ERs to ensure EEs are trained and
retrained as necessary.
Effective Dates
• Most of the rule was effective 1/17/17 others phased in:
• Ensuring exposed workers and those who use covered equipment
are trained on fall hazards (5/17/17),
• Inspecting and certifying permanent anchorages for rope descent
systems (11/20/17),
• Installing personal fall arrest or ladder safety systems on new fixed
ladders over 24 feet and on replacement ladders/ladder sections,
including fixed ladders on outdoor advertising structures
(11/19/18),
• Ensuring existing fixed ladders over 24 feet, including those on
outdoor advertising structures, are equipped with a cage, well,
personal fall arrest system, or ladder safety system (11/19/18), and
• Replacing cages and wells (used as fall protection) with ladder safety
or personal fall arrest systems on all fixed ladders over 24 feet
(11/18/36).

PENALTY INCREASES
OSHA Penalty Increase!
• Since 8/1/16 – Fed OSHA States – increased penalties
78% (but law provided for inflation index). Went up
Jan. 2017 and 2018 (1% increase).
– Other than Serious - $12,934
– Serious - $12,934
– Willful - $129,336
– Repeat - $129,336
• Every year it will increase for cost of living increases in
mid-January.
• State plan states will vary in their timing for their
increase of penalties (some have not done it at all)
• While some positive developments, OSHA still
inspecting and issuing higher fines.

Union Reps for Non-Union Employees During
Walkthrough?
• OSHA’s Letter of Interpretation released to the
public April 5, 2013 states:
– Anyone in a non-union facility may be designated
as their “representative” during an OSHA
investigation.
– This includes a union representative or a
community organization.
• Lawsuit challenged – OSHA withdrew on
4/25/17. Big win for ERs.
Serious Injury Reporting Rule
Reporting Obligations (eff. 1/1/15):
– All work-related fatalities (within 8 hours)
– All work-related in-patient hospitalizations (even 1
person, does not need to be 3 or more) (overnight
stay, not simply observation in the ER) (within 24
hours);
– all amputations (with or w/o bone loss) (within 24
hours); and
– all losses of an eye (not loss of sight) (within 24
hours)
26

Exceptions to Reporting Requirement
• If in-patient hospitalization, amputation or loss of an eye, only
have to report if it occurs within 24 hours of the incident.
• If in-patient hospitalization only involves observation or
diagnostic testing, do not have to report; only if it involves
care or treatment.
Enforcement Procedures
• OSHA determines which calls will result in
investigation vs. rapid response investigation
(RRI) (i.e., requests for written response)
• Due within 5 days as to abatement steps taken
in writing to OSHA
• Proof of abatement provided
• Be careful in response to OSHA as you may
cause inspection by your response

Tips
• Even more need for emphasis on prevention
and effective disciplinary program for
noncompliance
• Use your resources – corporate safety and in-
house counsel
• Prepare for OSHA inspection and be ready
• Consult with counsel prior to response to RRI
or the development of detailed non-privileged
investigation documents
Top 10 Violations FY ending 9/30/17
• Fall Protection (29 CFR 1926.501)
• Hazard Communication (29 CFR 1910.1200)
• Scaffolding (29 CFR 1926.451)
• Respiratory Protection (29 CFR 1910.134)
• LOTO (29 CFR 1910.147)
• Ladders (29 CFR 1926.1053) (switched places)
• Powered Industrial Trucks (29 CFR 1910.178)
• Machine Guarding (29 CFR 1910.212)
• Fall Protection (29 CFR 1926.503) – training
requirements (new to list)
• Electrical – Wiring (29 CFR 1910.305)

Interpretation Letter
Did Employee Experience an Injury?
• Employees exposed to acid vapors but did not
report problems. Later complained of difficulty
breathing and throat irritation. ER doctor examined
them and found no symptoms that required
medical treatment and they were released. Later
that day, EEs when to clinic on own complaining of
shortness of breath, nausea and coughing. Clinic
doctor found no symptoms but gave inhaler as
precaution for shortness of breath.
• 3 days later they went for a follow up visit to clinic,
Dr. found no symptoms.

Interp. letter (cont.)
• Did employee suffer injury or illness?
• 1904.46 defines “injury or illness” as including
respiratory disorder and wholly subjective
complaints can be considered an injury or
illness.
• Does employee complaint alone establish
existence of injury or illness?
• No! Dr.’s opinions trump employee’s subjective
complaints (Interp. Letter 9/14/17)
Discipline and Documentation

Document, document, document!
• Important for many reasons:
– Employee Misconduct Defense – must show consistent
enforcement of written safety rule.
– Defense of Retaliation Claims – either 11(c) whistleblower
or new antidiscrimination claims. If you don’t have a past
practice of disciplining “near miss” safety violations the
same as safety violations resulting in injuries, it looks
retaliatory.
– Other Employment Claims – defense to race, sex, disability,
etc. claims.
• Evaluations – if you have safety component remember
to document here as well (focus on misconduct not
the occurrence of injury)
Documentation
• Safety Discipline Summary Log - great idea to
keep this as a running spreadsheet so when
OSHA asks for it we aren’t looking through
hundreds of personnel files.
• Info:
– Who, when, where, what rule violated, type of
discipline?
– The actual write up should be in personnel file so
HR knows as well.

What about next 2 years?
• Enforcement will continue and with higher fines as
well.
• Fewer new regulations and some existing ones may
be revised and limited (i.e., non-discrimination
provisions of electronic recordkeeping)
• Perhaps more focus education and outreach
instead of excessive fines and shaming press
releases.
• OSHA is not going away, just different focus on
more substantive safety
QUESTIONS?

Barnes &Thornburg Resources
• Labor Alerts – email alerts on breaking labor and
employment topics including OSHA (Please give
me a business card if you want to be included on
the e-mail mailing list)
• Employment Law blog -
http://www.btcurrents.com/
• Traditional Labor Law blog -
http://www.btlaborrelations.com/
END OF PRESENTATION

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