OSHA’s Big Summer: Massive Penalty Increases, Anti-Retaliation Compliance, and Electronic Reporting

by John S. Gannon

Over the past few months, the U.S. Occupational Safety and Health Administration (OSHA) announced a number of regulatory changes that may have slipped under your radar.  Not surprisingly, none of the changes are favorable to employers.

Effective August 1, 2016, OSHA’s maximum fines for safety violations will go up a whopping 78 percent.  Serious violations will max out at $12,471 per violation (up from $7,000).  Willful and repeat violations will cap at $124,709 per violation (up from $70,000), and the failure to abate penalty will max out at $12,471 per day (up from $7,000).  Given the dramatic increase, employers should consider auditing workplace safety practices to evaluate OSHA citation risk.

OSHA also announced a final rule back in May 2016 that will require certain employers to electronically submit worker injury and illness data starting in 2017.  We outlined the new rule in a previous post, explaining which employers will have to submit the data by July 1 of each year.  Remember, OSHA intends to post the data on its public website, meaning the information will be available to customers, competitors and interested attorneys.

The electronic reporting rule also includes important anti-retaliation provisions that may call for changes to your workplace safety practices.  The rule requires employers to inform employees of their right to report work-related injuries and illnesses free from retaliation, which many employers already do in a company handbook.   However, the rule also states that several common practices will now be deemed retaliatory, including:

  • automatically conducting post-accident drug testing of injured employees;
  • maintaining rules or policies that discipline employees who do not immediately report workplace injuries; and
  • maintaining incentive programs that reward employees for experiencing no recordable workplace injuries or illnesses.

The anti-retaliation provisions of the final rule were originally set to take effect in August 2016, but have been delayed until November 1, 2016, so that OSHA can “conduct additional outreach and provide educational materials and guidance for employers.”  Even so, employers that engage in any of the practices listed above should consult with counsel in light of OSHA’s final rule.

John S. Gannon, Esq., attorney with Skoler, Abbott & Presser, P.C., will be discussing OSHA’s regulatory changes while walking employers through the agency’s inspection and citation process as part of an Environmental, Health & Safety Regulatory Update seminar series hosted by Tighe & Bond.   Attorney Gannon will be speaking on Tuesday, October 11, 2016, in Holyoke, MA, and Tuesday, October 25, 2016, in Middletown, CT.   There is no charge for the seminars, but pre-registration is required.  For more information, visit http://www.tighebond.com/Seminars.php or email Attorney Gannon directly.

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