Workshop II OSHA’s New Electronic Reporting Rule … How to Prepare and Comply Wednesday, March 22, 2017 11:15 a.m. to 12:30 p.m.
Biographical Information William H. Haak, Founder, Haak Law LLC Cleveland, Ohio 216.772.3532 whh@haaklawllc.com William H. Haak is the Founder of Haak Law LLC (www.haaklawllc.com) – an environmental, health & safety legal and consulting firm based in Cleveland, Ohio. He has more than 15 years of experience in occupational safety law and worker safety, and over 20 years of experience in environmental law (including extensive experience in air pollution control law and multi-media environmental compliance). Mr. Haak practices nationally in the United States and consults globally on all matters related to the EHS field (plus security and crisis management). Mr. Haak graduated from The University of Akron (Business Finance) and Case Western Reserve University School of Law (J.D. with an emphasis on litigation and trial practice). Following law school, he worked as an Assistant Attorney General in the State of Ohio Attorney General’s Environmental Enforcement Section. As counsel to Ohio EPA, Mr. Haak’s practice was focused primarily on civil and administrative air pollution control cases. During his time with the Attorney General’s Office, Mr. Haak resolved civil environmental enforcement actions resulting in civil penalties totaling approximately $4 million. Prior to forming Haak Law LLC, Mr. Haak was Senior EH&S Counsel for General Electric. He supported GE’s Appliances and Lighting Businesses, and was engaged in complex air permitting issues for other GE businesses nationwide. Mr. Haak has also been Associate General Counsel – EH&S for Hexion Specialty Chemicals in Columbus, Ohio, and Senior Regulatory Law Counsel for Owens Corning in Toledo, Ohio. He served overseas in the former Soviet Union (Ukraine) as an Environmental Enforcement Specialist with the American Bar Association’s Central & East European Law Initiative ("ABA/CEELI"). Haak is a frequent lecturer to attorneys, engineers, and environmental professionals on topics concerning federal and state air pollution law. In addition, he has taught as an adjunct faculty member at the University of Central Florida in Orlando and Columbus State in Columbus, Ohio. Since 2005, Haak has taught classes focusing on Air Pollution Law and Occupational Safety and Health Law at The University of Toledo College of Law as an Adjunct Professor. Kaleb J. Brankamp, ES&S Attorney Marathon Petroleum Company LP 539 South Main Street, Rm. 968-M, Findlay, OH 45840 kbrankamp@marathonpetroleum.com Kaleb Brankamp is in-house legal counsel for Marathon Petroleum Company LP. Kaleb joined the HES&S Law group at Marathon in 2015 focusing primarily on OSHA compliance and enforcement matters, including process safety management compliance. In addition, Kaleb advises his client concerning security-related legal issues. Kaleb holds a juris doctor degree from Capital University and a bachelor of arts degree from The Ohio State University. Prior to joining Marathon, Kaleb worked for 2 years at the law firm Porter, Wright, Morris & Arthur and spent 5 years in-house legal counsel for Konecranes, Inc.
OSHA’s “New” 2016 Electronic Reporting Rule: How to Prepare and Comply… Session II March 22, 2017 William H. Haak Kaleb J. Brankamp Haak Law LLC Marathon Petroleum HAAK LAW LLC Environmental, Health & Safety Legal and Consulting Services
Introduction & Agenda • Overview • Employer obligations and deadlines • Ongoing litigation • Retaliation and reporting • Impacts on substance testing programs • What EH&S, HR, and operations can do to respond • A note on employee incentive programs… • OSHA’s new 300 Log recordkeeping requirements HAAK LAW LLC Environmental, Health & Safety Legal and Consulting Services
The Electronic Reporting Rule • Background and overview of the rule • Retaliation takes center stage • “ Fire, ready, aim… ” HAAK LAW LLC William H. Haak Tel: 216.772.3532 Environmental, Health & Safety whh@haaklawllc.com Legal and Consulting Services
Injury Data Electronic Submission Reporting to OSHA (via secure website) : 1. Establishments w/ 250+ employees must annually submit to OSHA injury and illness information from their OSHA 300 Logs, 301 Incident Reports, and 300A Annual Summaries 2. Establishments w/ 20+ employees (but fewer than 250) in certain so‐called “High Hazard Industries” must annually submit information from their 300A Annual Summaries Establishments = “Single physical location where business is conducted or where services or industrial operations are performed.” 4
Key Reporting Deadlines Establishments Establishments Recordkeeping Deadline to w/ 250+ w/ 20‐249 Forms for Year Submit Forms employees employees 2016 300As 300As July 1, 2017 300 Logs, 300As 2017 300As July 1, 2018 & 301s March 1, 2019 (& March 1 st 2018 and 300 Logs, 300As 300As thereafter & 301s each subsequent year) 5
Publication of Electronic Data OSHA intends to make the data it collects public on its Web site Data will be posted without context What about personally‐identifiable information? OSHA will not collect or publish certain fields (e.g., Form 301: employee name, employee address, name of treating physician or health care provider) OSHA will use software that will search for and de‐identify personally identifiable information before OSHA posts the data 6
Current Litigation Industry groups filed suit on July 8, 2016 in District Court for the Northern District of Texas challenging the anti‐retaliation provisions of the new rule. Plaintiffs’ also sought a preliminary injunction preventing the Department of Labor from enforcing the anti‐retaliation provisions. On Nov. 28, 2016, the court denied the plaintiffs’ motion for preliminary injunction. A decision on the merits of the legal challenge and the validity of the final Rule has not yet been made. Compliant was recently amended to add challenges to the provision of the rule that would result in on‐line publication of establishment‐specific injury and illness information. 7
Employee Notification Requirements As of December 1, 2016 , employers must inform employees of the following: Procedures for reporting work‐related injuries – “Reasonable” reporting procedures are required – Does the procedure make reporting so difficult or complicated that a reasonable employee would be discouraged from reporting an injury or illness? That employees have the right to report work‐related injuries and illnesses That employers are prohibited from discharging or in any manner discriminating against employees for reporting work‐related injuries or illnesses 8
Employee Notification Requirements, Cont’d. OSHA’s new workplace poster is accepted as providing the required notice to employees concerning the right to report work related injuries free from retaliation https://www.osha.gov/Publications/ osha3165‐8514.pdf. 9
New Retaliation Enforcement Tool Final Rule allows OSHA to issue citations to employers for retaliating against employees for reporting work‐related injuries and illnesses and require abatement even if no employee has filed a section 11(c) complaint. Feasible means of abatement could include reinstatement and back pay Actions that OSHA believes could discourage a reasonable employee from reporting a work‐related injury: Discipline for “late” injury reporting Discipline for violation of a vague work rule (e.g., “work carefully” or “maintain situational awareness”), especially only after injuries 10
Late Injury Reporting (Sec. of Labor v. US Steel) Two employees were suspended without pay for five days as a result of failing to report their injuries within the required time under the US Steel reporting policy, which requires employees to report all injuries or illnesses “immediately”. The two employees filed retaliation complaints with OSHA, alleging that the Company had violated §11(c) of the OSH Act. The DOL agrees and filed suit against US Steel. DOL stated that US Steel’s immediate reporting requirement creates “a barrier for reasonable employees to report workplace injuries”. The parties settled the suit on July 15, 2016. Included in the settlement is a sample of an injury or illness reporting policy that OSHA apparently considers to be compliant. 11
“Retaliation” and Substance Testing • OSHA’s concerns about substance testing • Angst and hysteria in 2016 • OSHA gets sued, calls “timeout”, and clarifies… • Where we stand now HAAK LAW LLC William H. Haak Tel: 216.772.3532 Environmental, Health & Safety whh@haaklawllc.com Legal and Consulting Services
What About Your Substance Testing Program? • Review “when” you test (HINT: Consider a checklist…) • Test methodology and “latency” • What to look for when reviewing your policy Do you test after every injury/illness? • What are your "carve outs"? • Do you test on reasonable suspicion? Random testing? • Is your post-positive test discipline “binary”? • Do you have an employee assistance program? • • What do you do to encourage/enforce injury reporting? • Is your training/education up to date? HAAK LAW LLC William H. Haak Tel: 216.772.3532 Environmental, Health & Safety whh@haaklawllc.com Legal and Consulting Services
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