HIGHLIGHTS
- The final rule required employers to create and maintain workplace injury and illness records for at least five years.
- The Trump administration signed into law a bill that invalidates the final rule.
- Employers subject to OSHA recordkeeping requirements must create injury and illness records within six months of an incident and retain these records for at least five years.
IMPORTANT DATES
December 19, 2016
OSHA’s final rule on ongoing employer recordkeeping obligations published.
April 3, 2017
The final rule was nullified.
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On April 3, 2017, President Donald Trump signed into law House Joint Resolution 83 (H.J. Res. 83). This bill nullifies a recordkeeping final rule issued by the Occupational Safety and Health Administration (OSHA). OSHA issued this final rule to amend its recordkeeping regulations and clarify that an employer’s duty to create and maintain work-related injury or illness records is an ongoing obligation. The final rule did not create any additional or new recordkeeping obligations for employers.
The clarification explained that an employer remains under an obligation to record a qualifying injury or illness throughout the five-year record storage period, even if the incident was not originally recorded during the first six months after its occurrence.
This Compliance Bulletin contains information regarding the nullified final rule and clarifies which legal requirements no longer affect employers subject to OSHA recordkeeping rules.
ACTION STEPS
The final rule is no longer valid. Therefore, employers are no longer required to comply with any of its provisions. Employers that were affected by the final rule should review their workplace injury and illness recordkeeping procedures and ensure that they are consistent with the nullification of this rule.
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OSHA Recordkeeping Requirements
OSHA requires employers to create and maintain records about workplace injuries and illnesses that meet one or more recording criteria. Specifically, employers must:
- Create and update a log of work-related injuries and illnesses (OSHA Form 300);
- Create and maintain injury and illness incident reports (OSHA Form 301); and
- Create and display an annual summary of workplace incidents (OSHA Form 300A) between Feb. 1 and April 30 of each year.
Employers must keep these records for at least five years. The five-year retention period begins on Jan. 1 of the year following the year covered by the records. For example, the five-year retention period for incident reports created on Jan. 23, 2015, June 15, 2015, and Nov. 4, 2015, begins on Jan. 1, 2016.
Penalties for Noncompliance
OSHA has the authority to issue citations and assess fines against employers that violate recordkeeping laws. However, in general, the Occupational Safety and Health Act of 1970 (OSH Act) does not allow for a citation to be issued more than six months after the occurrence of a violation.
OSHA is of the opinion that a violation exists until it is corrected. Therefore, according to OSHA, the six-month period to issue citations and assess penalties begins on the date of the last instance of the violation. For example, if a violation that started on Feb. 1 was corrected on May 15, the six-month period would begin on May 15, and OSHA would have until Nov. 15 to issue a citation.
OSHA also asserts that uncorrected violations are considered ongoing violations, and that each day of noncompliance is subject to a separate penalty.
The Final Rule
According to OSHA, adopting the final rule and amending its recordkeeping regulations was necessary because the previous regulations did not allow OSHA to enforce an employer’s incident recording obligation as an ongoing requirement. In fact, a federal circuit court has held that the former regulations did not authorize OSHA to “cite the employer for a record-making violation more than six months after the recording failure.”
The court also noted that there is a discrepancy between the OSH Act and the regulations, and that while the OSH Act allows for continuing violations of recordkeeping requirements, the specific language in the regulations does not implement this statutory authority and does not create continuing recordkeeping obligations.
The federal court interpretation of the regulations meant that employers were no longer responsible for recording or storing workplace incidents if OSHA failed to detect and penalize employers for omitted recordable incidents within the six-month period. For this reason, OSHA issued its proposed amendments on July 29, 2015.
Impact on Employers
Because the final rule has been effectively repealed, employers are no longer required to comply with any of its provisions. This means that OSHA cannot enforce an employer’s recordkeeping obligation if the employer fails to record an incident within the first six months of when the incident took place. In practical terms, this means that OSHA will have to limit the scope of its recordkeeping investigations to the previous six months, rather than the previous five years.
However, because some OSHA records span entire calendar years, employers that fail to create injury and illness records in a timely fashion risk the possibility of keeping inaccurate records or reporting erroneous information to OSHA. Therefore, employers should not interpret this legislative development as an opportunity to bypass or contravene existing OSHA recordkeeping obligations. |
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OVERVIEW
The U.S. Court of Appeals for the 7th Circuit has ruled that Title VII of the Civil Rights Act (Title VII) prohibits employment discrimination based on sexual orientation. The decision in Hively v. Ivy Tech, issued on April 4, 2017, makes it illegal to use an individual’s sexual orientation as a basis for employment decisions.
The ruling applies to employers with 15 or more employees in Wisconsin, Illinois and Indiana.
The decision is groundbreaking because it overturned prior cases and also conflicts with law from other federal courts. However, it aligns with the Equal Employment Opportunity Commission’s (EEOC) position. This makes review of the issue by the U.S. Supreme Court likely in the future.
ACTION STEPS
Affected employers should review their existing policies to ensure they do not allow discrimination based on sexual orientation or gender identity. Employers should also review any applicable state laws and the EEOC’s enforcement guidance to ensure their policies are compliant.
Background
Title VII is a federal law that prohibits employers with 15 or more employees from discriminating against employees and job applicants on the basis of their race, color, religion, sex or national origin. Since Title VII was enacted in 1964, several federal courts, including the 7th Circuit, have held that the law’s inclusion of the word “sex” means that its protections only extend to traditional notions of gender.
For example, the 7th Circuit’s 1984 decision in Ulane v. Eastern Airlines had held that Title VII only makes it unlawful to discriminate “against women because they are women and against men because they are men.” The U.S. Court of Appeals for the 11th Circuit (which includes Alabama, Florida and Georgia) recently issued a similar holding in its March 2017 decision in Evans v. Georgia Regional Hospital.
Although the U.S. Supreme Court has never specifically addressed whether Title VII prohibits discrimination based on sexual orientation, its decisions in other cases have established that:
- The practice of “gender stereotyping” falls within Title VII’s prohibition against sex discrimination; and
- Discrimination based on the race of a person with whom another individual associates is a form of racial discrimination under Title VII.
Relying on these and other Supreme Court decisions in its ruling in Hively v. Ivy Tech, the 7th Circuit expressly overturned all of its prior case law that had excluded sexual orientation from Title VII. Instead, the 7th Circuit held, “a person who alleges that she experienced employment discrimination on the basis of her sexual orientation has put forth a case of sex discrimination for Title VII purposes.” The court further specified that “it is impossible to discriminate on the basis of sexual orientation without discriminating on the basis of sex.”
Hively v. Ivy Tech
In 2013, Kimberly Hively, an openly gay woman who had worked as a part-time adjunct professor, filed a Title VII discrimination charge against her former employer, Ivy Tech Community College. Hively alleged that because she was gay, Ivy Tech had rejected her for six full-time positions and refused to renew her part-time employment contract. She argued that these actions constituted unlawful discrimination based on sex under Title VII.
A district court dismissed her case based on prior federal court interpretations of Title VII’s prohibition against sex discrimination. Hively then appealed to the 7th Circuit, which ruled in her favor on April 4, 2017. Under its comparative analysis, the court concluded that Hively’s claim involved discrimination based on her failure to conform to a heterosexual female stereotype. According to the court, this made Hively’s claim “no different from the claims brought by women who were rejected for jobs in traditionally male workplaces, such as fire departments, construction and policing.”
The 7th Circuit also compared Hively’s claims to cases in which the Supreme Court held that employers may not discriminate against an individual based on the race of his or her associates. Noting that the Supreme Court has held that this type of discrimination affects both partners in an interracial marriage, the 7th Circuit applied the same reasoning to Hively’s situation.
Considerations for Employers
While the 7th Circuit’s decision overturned the court’s prior cases to clarify how the federal law applies in the three states under its jurisdiction, two of those states (Wisconsin and Illinois), along with 20 other states in the United States, have already passed laws outlawing sexual orientation discrimination in employment. In addition, the EEOC, which is responsible for the enforcing Title VII, has taken a position that aligns with the 7th Circuit’s decision since 2015. Specifically, the EEOC already interprets and enforces Title VII’s prohibition against sex discrimination as forbidding any employment discrimination based on sexual orientation or gender identity.
Therefore, employers should be aware that the 7th Circuit’s decision does not necessarily represent a radical shift in the law. Instead, the decision merely reinforces the fact that employers may be penalized for discriminating against individuals based on sexual orientation or gender identity. More information about the EEOC’s enforcement policy is available on the EEOC’s website.
The 7th Circuit’s decision provides additional guidance for employers as well. For example, the court stated that “any discomfort, disapproval or job decision based on the fact that a complainant—woman or man— dresses differently, speaks differently, or dates or marries a same-sex partner, is a reaction purely and simply based on sex.”
Finally, employers should be aware that the 7th Circuit’s decision does not address the meaning of sex discrimination in the context of social or public services, nor in the context of employment related to a religious mission. In addition, the issue addressed in the case may undergo review by the U.S. Supreme Court in the near future. Therefore, employers should continue to watch for legal developments affecting Title VII.
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Assembly Bill No. 2883 was approved and filed August 26, 2016 and it’s causing quite a disruption with existing businesses. The bill focuses on revising the exceptions as what a defined “employee” is considered. The existing law states that officers and directors of a private corporation, and working members of a partnership or LLC were not required to be covered under the company workers compensation policy unless they opted to be covered.
However, the Assembly Bill No. 2883 revises the exceptions so that a director or officer is required to be covered under the company policy. There is still a, albeit narrow, definition of exclusion, but if they do fall under this exclusion they can only opt out if they sign a waiver under penalty of perjury and file it with the company insurer. The officer and director must own at least 15% of the issued/outstanding stock or a general partner, partnership or managing member of an LLC to be considered exempt.
The specific changes were put in place to discourage companies from abusing the previous exemption. Many companies were listing all employees as directors or officers to avoid having to purchase workers compensation insurance. By requiring the waiver to be signed under penalty of perjury, they hope to ensure employees are properly covered and protected in the event of a work-related injury.
The new bill affects all polices that will be in effect on or after Jan 1, 2017 including policies in force any time after this date.
For more information on this new bill or to review your current workers compensation policy, contact us today at 831.661.5697.
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A home might seem like one of the safest places for a child to play, but household furniture carries many unforeseen dangers, especially for young children.
Deadly Consequences
A child is killed every two weeks due to falling furniture in the United States—70 percent are caused by TVs alone. Injuries are even higher, with over 25,000 per year. Preventive measures should be taken to ensure children are safe at home.
Preemptive Protection
Parents will often “baby-proof” their house when expecting a child. This typically includes rounding off sharp table corners and installing baby locks. Surprisingly, properly anchoring heavy furniture is often overlooked.
Preventing Tip-overs
- Use sturdy furniture to hold your TV and other appliances.
- Mount flat-screen TVs whenever possible.
- Closely follow assembly instructions for TVs and furniture.
- Secure top-heavy furniture with anti-tip brackets.
- Remove enticing objects from the top of heavy furniture to discourage children from climbing.
Furniture Tip-over Myths
- Heavy furniture will not fall over. This is a common misconception. Even base-heavy furniture can be hazardous when children open the drawers and climb on them.
- Rooms where children aren’t allowed don’t need precautions. Even a brief opportunity to wander in a bedroom or office can end in tragedy if the child plays on heavy furniture. Tip-overs happen quickly, and it is dangerous to leave a room unprotected.
- Latched dresser drawers are sufficient. Latches made for cabinets are not a substitute for an anchor. Young children can figure out the latches or even open drawers wide enough to begin climbing.
- Older children know they shouldn’t climb. Children aren’t masters of reason and can be compelled to climb if they see a toy sitting on top of a dresser. Additionally, children do not commonly think of shelves or dressers as dangerous, so climbing seems low-risk.
- Sturdy furniture is safe. No matter the weight, no matter how sturdy, all furniture can pose a risk if not properly anchored. The quality of furniture does not lower the danger.
Remember, taking a few extra precautions now can save a child’s life in the future. Play it safe and anchor heavy furniture.
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The Contracting Classification Premium Adjustment Program (CCPAP) is a discount program that can reduce the amount that an employer pays in workers’ compensation premiums.
How does the CCPAP work?
The CCPAP was developed to provide a premium credit for employers in the contracting and construction industry who pay their employees higher than average wages. The CCPAP discount is calculated using the hourly rate of employees who are classified within the construction industry’s contracting class codes.
The system that is used to calculate workers’ compensation premiums groups employees according to risk. For each classification, the employer must pay a certain amount of workers’ compensation premiums based on every $100 of payroll. Since high wages amount to higher workers’ compensation premiums, employers use the CCPAP to lower their premiums to an amount more level with what they would be paying if they paid their employees less. With the CCPAP, employers aren’t penalized for paying their employees higher than average wages.
How does an employer apply for the CCPAP?
An employer must complete the CCPAP application and return it to the National Council on Compensation Insurance (NCCI) within 180 days from either the effective date or the anniversary rating date of the workers’ compensation policy. The CCPAP must be applied for every year.
When completing the application, the employer must determine which calendar quarter data to use. The employer will also be asked to provide a description of operations or its classification, the appropriate classification code, the total wages paid and the total hours worked.
Once the application is received by the NCCI, the average hourly wage will be computed and the CCPAP credit will be generated according to the rules for the state in which the application is being made. The insurance company will then be notified, and the credit will be applied to the policy.
In which states is the CCPAP available?
The CCPAP is not a national program. Each participating state has its own rules, which include qualification and calculation of credits. Some states may also have an hourly pay rate threshold for entry into this program.
To see if the CCPAP is available for your business, consult with Scurich Insurance Services for more information about the program and the potential to lower your workers’ compensation premiums.
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On Jan. 9, 2017, the Occupational Safety and Health Administration (OSHA) issued a final rule that amends its beryllium standards for the general, construction and shipyard industries.
The final rule sets a new permissible exposure level (PEL) and requires new provisions to protect workers, including exposure control measures, exposure assessments, respiratory protection, personal protective clothing and equipment, and new conventions for housekeeping, medical surveillance, hazard communication and record keeping.
The final rule becomes effective on March 10, 2017, though compliance is not required on most provisions until March 12, 2018.
ACTION STEPS
Employers should become familiar with the new standards and evaluate their current workplace practices and training programs to ensure compliance with the final rule by the applicable deadlines.
Beryllium
Beryllium is a metal that is lighter than aluminum and stronger than steel. Beryllium is also durable, stable, conductive and nonmagnetic. Because of its properties, beryllium is often used as an alloying agent to produce beryllium copper, and it can be found in nuclear reactors, machine parts and springs, complex electronic equipment and aircraft.
However, beryllium is also very toxic. Exposure to unsafe beryllium levels can cause respiratory problems and skin disease. Beryllium exposure can also affect an individual’s eyes, liver, kidneys, heart, nervous system and lymphatic system. Also, beryllium is a known cancer-causing substance.
Affected Employers
OSHA estimates that approximately 35,000 workers are exposed to beryllium in approximately 4,088 establishments in the United States. However, even though the highest risk of exposure for workers is at the workplace, exposure can also happen through contaminated clothing and vehicles and can affect a worker’s family members and the general public.
Employers in manufacturing and alloy production, machining and fabrication, and recycling have traditionally shown the highest average exposures to beryllium.
New PELs
The final rule establishes two new PELs that apply to beryllium in all of its forms, compounds and mixtures. These standards are:
| TWA PEL 0.2 μg/m3
An eight-hour time-weighted average (TWA) PEL of 0.2 micrograms per cubic meter of air |
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STEL PEL 2.0 μg/m3
A 15-minute short-term exposure limit (STEL) of 2.0 micrograms per cubic meter of air |
TWA PEL
The TWA PEL dictates that employers cannot allow the average worker exposure during an eight-hour work shift to exceed 0.2 μg/m3. The new TWA PEL represents one-tenth of the previous PEL. The new TWA PEL is ten times smaller than the previous PEL because OSHA found that the previous standard posed a “significant risk of material impairment of health to exposed workers.”
Even though OSHA concluded that a TWA PEL of 0.1 μg/m3 was preferable, it chose to adopt the 0.2 PEL out of concerns over the feasibility of implementing a 0.1 TWA PEL.
STEL PEL
The STEL PEL, or ceiling limit, was adopted because even the 0.2 μg/m3 TWA PEL continues to pose a significant health hazard to workers. The STEL PEL is intended to protect workers from the harm that may result from beryllium exposures that, though brief, exceed the TWA PEL.
The final rule sets the beryllium STEL PEL at than 2.0 μg/m3 of beryllium in any 15-minute sample during the work shift. Employers will be required to make sure that no worker is exposed to a higher concentration. Employers will need to measure their STEL PEL during the highest-exposure operations performed by workers.
Action Level
The final rule also implements an action level for beryllium. Under the final rule, the action level for beryllium is a concentration of airborne beryllium of 0.1 μg/m3 calculated as an eight-hour TWA. When beryllium concentrations are equal to or higher than the action level trigger, an employer may have to:
- Conduct periodic exposure monitoring (if the employer is following the scheduled monitoring option);
- List the operations and job titles that are reasonably expected to expose workers at or above the action level as part of their written exposure control plan;
- Ensure that at least one of the controls listed by the final rule is set in place (unless the employer can demonstrate, for each operation or process, that such controls are either not feasible or that worker exposures are below the action level based on at least two representative personal breathing zone samples taken at least seven days apart);
- Provide employee medical surveillance for employees that are exposed at or above the action level for more than 30 days per year (an employer’s medical surveillance obligations allow affected employees to receive exams at least every two years at no cost to the employee);
- Follow medical removal protocols. Employees eligible for removal can choose to remain in environments with exposures at or above the action level, provided they wear respirators. These employees may also choose to be transferred to comparable work in environments with exposures below the action level. However, if comparable work is not available, the employer must maintain the employee’s earnings and benefits for six months or until comparable work becomes available.
Additional Requirements
The table below provides a summary of additional requirements and changes imposed by the final rule.
| Exposure Assessment |
· Employers must provide exposure assessment when workers are reasonably expected to be exposed to airborne beryllium.
· Employers may choose between the performance or schedule monitoring options. |
| Beryllium Work Areas |
· Employers in the general and shipyard industries must establish, maintain, demarcate and limit access to certain areas to limit worker exposure.
· Employers in the construction industry must designate a “competent person” to demarcate certain areas of beryllium exposure. |
| Written Exposure Plan |
· Employers must establish, implement, and maintain a written exposure control plan and specify the information that must be included in the plan.
· Written exposure plans must be reviewed annually and updated as required.
· Employers must also make a copy of the written plan to any employee who is, or can reasonably be expected to be, exposed to airborne beryllium. |
| Respiratory Protection |
· Employers must provide adequate respiratory protection at no cost to their employees. Powered air-purifying respirators (PAPRs) instead of negative pressure respirators must be provided if requested by employees.
· Employers must ensure that employees use respiratory protection in certain situations. |
| Personal Protective Equipment (PPE) |
· Employers must provide adequate PPE to their employees when:
o Exposure exceeds, or can reasonably be expected to exceed, the TWA PEL or STEL; and
o There is reasonable expectation of dermal contact with beryllium.
· Employers must follow the final rule’s updated standards for appropriate removal, storage, cleaning and replacement of required PPE. |
| Hazard Communication |
· Employers have to take additional steps to warn and train employees about beryllium hazards. |
| Housekeeping |
· Employers in the general industry must:
o Maintain all surfaces in beryllium work areas as free as practicable of beryllium;
o Clean spills and emergency releases of beryllium promptly;
o Use appropriate cleaning methods; and
o Dispose of materials containing or contaminated with beryllium properly.
· Employers in the shipyard and construction industries must:
o Follow the required written exposure control plan when cleaning beryllium-contaminated areas;
o Use appropriate cleaning methods, and
o Provide beryllium-containing material recipients for use or disposal with a copy of the hazard communication or warning described in the final rule. |
| Hygiene Areas and Practices |
· Under specified circumstances, employers must provide employees with readily accessible washing facilities and change rooms (access to showers for employee use may also be required by the general industry standard).
· Employers must take certain steps to minimize exposure in eating and drinking areas. |
Appendix A
The final rule also includes Appendix A to the final standard for the general industry. This appendix provides information to employers on recommended control options that employers could use to comply with their requirement to reduce exposure to airborne beryllium in beryllium work areas.
However, compliance with the information in Appendix A is recommend, not required. OSHA stated in the final rule “Appendix A is for informational and guidance purposes only and none of the statements in Appendix A should be construed as imposing a mandatory requirement on employers that is not otherwise imposed by the standard. In addition, this appendix is not intended to detract from any obligation that the rule imposes.”
More Information
Please contact [B_Officialname] or visit the OSHA Beryllium webpage for more information on this topic.
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