(Courtesy of Guest Bloggers Joseph N. Gross, partner, and Cheryl Donahue, associate, with Benesch, Friedlander, Coplan & Aronoff LLP)
Although many manufacturers are upbeat about the changes in leadership that will be coming at the Occupational Safety and Health Administration (OSHA) and having a full complement of commissioners at the OSHA Review Commission, new OSHA standards could mean a few non-compliance surprises.
Recordkeeping: Who, what, and when
OSHA revised its recordkeeping requirements for tracking work-based injuries and illnesses, now requiring many employers to submit their records electronically. This new electronic recordkeeping rule affects all employers with 250 or more employees that were previously required to keep OSHA injury and illness records and employers with 20-249 employees that are classified in any of 67 specific industries, including manufacturing, which, according to OSHA, historically have had high injury and illness rates. To be compliant, affected employers must submit their 300A Forms by December 1, 2017, per OSHA’s latest notice of proposed rulemaking. Forms are to be submitted to OSHA’s Injury Tracking Application. After the forms are collected, OSHA will post each employers’ specific illness and injury data on its website, to, as one of OSHA’s announcements explains, nudge employers to prevent workplace injuries and illnesses.
Recordkeeping in 2018
In 2018, the electronic recordkeeping requirements change again. Employers with 250 or more employees are required to electronically submit all of their required 2017 forms (Forms 300A, 300, and 301) by July 1, 2018. Employers in the specified high-risk industries, including manufacturing, with 20-249 employees are required to submit their 2017 Forms 300A by July 1, 2018. Beginning in 2019, the submission deadlines change from July 1 to March 2 each year.
In addition to the electronic submission requirements, the new recordkeeping rule prohibits employers from retaliating against employees who report their work-related injuries and illnesses. The rule also requires employers to inform employees of their right to report their injuries and illnesses free from retaliation. Employers’ reporting procedures must be reasonable and cannot discourage or deter employees from reporting. Although OSHA did not go so far as making safety incentive programs unlawful, OSHA made clear that rewarding employees for having a good safety record is not permissible.
The dead Volks Rule
In April 2017, President Trump signed a resolution that killed the Volks rule. The Volks rule permitted OSHA to issue citations for certain recordkeeping up to five years after the noncompliant conduct. OSHA’s authority is back to six months. Changes to other rules and policies, including the electronic recordkeeping rule, are probably one to two years away, so stay tuned.
New compliance standards: beryllium & silica
On May 20, 2017, OSHA’s new beryllium standard became effective. Beryllium is a strong, lightweight metal used in industries such as aerospace, automotive, defense, and nuclear energy. The new standard reduces the permissible exposure limit for beryllium to 0.2 micrograms per cubic meter of air, averaged over an eight-hour day. The new standard also requires employers to use practices such as ventilation or enclosure to limit employee exposure to beryllium and to provide respirators when exposure cannot be limited.
On October 23, 2017, OSHA’s silica standard began limiting employee exposure of silica dust to 50 micrograms of respirable crystalline silica per cubic meter of air, averaged over an eight-hour day. Silica exposure occurs when employees cut, grind, or drill silica-containing materials such as concrete, rock, tile, or masonry. The standard now requires employers to limit employees’ access to high exposure areas, to provide medical care to employees who have been exposed, and to train employees about silica-related hazards.
Walking and working surfaces and ladders
OSHA’s new fall-protection standards became effective earlier this year, but manufacturers will not get the full impact until they have to buy new ladders. They are changing. In 20 years, employers will have to replace all cages and wells used as fall protection on ladders of more than 24 feet with more effective systems. But, starting November 2018, employers purchasing new fixed ladders over 24 feet will not be able to use cages and wells for fall protection.