Fall protection in construction is one of the most cited OSHA standards across all industries, with fall protection training in construction being the eighth most-cited. More importantly, falls constitute more than a third of construction deaths, dwarfing the next three causes combined. Outside of construction industries, falls remain a leading cause of citations and fatalities. Falls are the most dangerous hazard for American workers, which means that fall protection is the most important safety consideration for employers. Disappointingly, in late March this year the COVID-19 pandemic forced OSHA to postpone its Seventh Annual National Safety Stand-down to Prevent Falls.
The Occupational Safety and Health Act (“OSH Act”) requires covered employers to meet several reporting requirements to prove compliance. At this time of the year, many covered employers have posted (or should have posted) OSHA Form 300A for injuries and illnesses that occurred in 2019. Covered employers are also preparing to electronically submit Form 300A summary data to OSHA by March 2. Inevitably, compliance with OSHA’s reporting rules leads to employer questions concerning OSHA’s recordkeeping requirements, including the frequently asked – “Do I have to keep OSHA logs?” This question is particularly challenging for companies in non-exempt industries with establishments that perform different business activities. The good news is there is an answer. However, the key to unlocking the answer to this recordkeeping challenge is to first understand OSHA’s definition of an “establishment.”
On Thursday, November 15, 2019, the Mine Safety and Health Administration (“MSHA”) held the fourth of five stakeholder meetings to discuss the implementation of the revised Workplace Examination standard for metal/non-metal mines, 30 C.F.R. §§ 56/57.18002 (“Rule”). Similar to prior meetings, the meeting focused on discussion of the two provisions from the January 2017 version of the Rule that were reinstated following the D.C. Circuit’s decision on June 11, 2019. A discussion of the reinstatement of the January 2017 version of the Rule can be found here. The two provisions that were reinstated related to timing of the examination and record keeping.
We recently reported that on June 11, 2019, a three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit issued an opinion vacating the Mine Safety and Health Administration’s (“MSHA”) 2018 rule (“2018 Amendment”) entitled Examinations of Working Places in Metal and Nonmetal Mines, codified at 30 C.F.R. § 56/57.18002, see 83 Fed. Reg. 15,055 (Apr. 9, 2018). In so doing, the D.C. Circuit ordered the reinstatement of MSHA’s January 23, 2017 version of the rule (“2017 Standard”), which revised the previously existing workplace examination standard at 30 C.F.R. § 56/57.18002. See our previous blog post.
Most employers are aware that the Occupational Safety and Health Administration can issue monetary penalties for health and safety violations occurring in the workplace. Many employers also know that in particular circumstances, OSHA can issue criminal sanctions. However, what employers may not know is that OSHA has also been referring workplace safety violations to state district attorney offices in fatality cases. A district attorney then reviews the case to determine if a company owner should be individually charged with manslaughter or other state criminal violations.
At the end of July, the Mine Safety and Health Administration (“MSHA”) announced the issuance of a Program Policy Letter (“PPL”) to provide mine operators guidance regarding the existing requirement to provide escape ways or refuges at underground metal and nonmetal mines when miners must shelter in place. The PPL is being issued for public comment prior to being final despite MSHA noting that the PPL is not to be considered rulemaking. However, MSHA believes the PPL is necessary to address significant safety issues regarding the placement of a refuge in a location that provides miners access if they cannot escape.
Over the last couple of years, employee incentive programs have been under attack from the Department of Labor. However, OSHA and MSHA have undertaken their efforts against incentive programs in different ways. In the preamble to the 2016 proposed amendments to 29 CFR § 1904.35, OSHA discussed how it could issue citations to employers based on workplace safety incentive programs should the program be found to discourage reporting of injuries. MSHA has been battling the issue through litigation with appeals still currently pending as explained more fully below.