OSHA issued a new Site Specific Targeting (SST) Plan effective October 16, 2018. Unlike prior versions, this new SST Plan utilizes the 2016 300A data that many employers electronically submitted in December 2017. The new SST Plan is, therefore, dubbed the SST-16.
House Bill 2 (“HB2”) was signed into law by Governor Matt Bevin and became effective in July 2018. Through HB2, the legislature enacted significant changes to multiple provisions of the Workers’ Compensation Act. One of the most significant changes in the statute is the portion related to injuries resulting from illegal, non-prescribed substances or prescribed substances in excess of prescribed amounts. Previously, if an employee underwent a drug test after an injury, the employer had to prove that the use of non-prescribed substances (illegal drugs or alcohol) was the proximate cause of the injury. The new workers’ compensation law shifts the burden of proof to the injured worker to prove such illegal substances or prescribed substances was not the proximate cause of the injury. This is a significant difference because the illegal or prescribed substance is now presumed to be the cause of the injury until rebutted by the employee.
Today, the U.S. Occupational Health and Safety Administration (OSHA) issued a standard interpretation clarifying its position on the new recordkeeping rule’s anti-retaliation provisions. OSHA’s memorandum essentially “rolls back” its enforcement of the anti-retaliation provisions, particularly concerning safety incentive programs and post-accident drug testing. Why is this important? Mainly because many employers struggled to understand the anti-retaliation provisions since they were published, in guidance materials accompanying the new regulations, in May 2016. Indeed, OSHA has gone to great lengths to explain the anti-retaliation provisions in the new rule’s preamble, with OSHA guidance and several memorandums. To be blunt, OSHA’s explanations have been extremely vague and confusing. But alas, the struggle to understand the anti-retaliation provisions is over … hopefully. Today’s interpretation states supersedes all the prior guidance on this topic.
Today, OSHA posted a press release announcing two week reprieve for employers to submit the 300As (only the 300As this year regardless of size if more than 20 employees) from December 1 to December 15, 2017.
The December 1 compliance date for federal OSHA’s new electronic recordkeeping portion of the new recordkeeping regulation is fast approaching. Known as “Improve Tracking of Workplace Injuries and Illnesses,” the new federal OSHA rule will require certain employers with more than 20 employees to electronically submit injury records that will be posted on OSHA’s website.
OSHA issued a press release on July 14, 2017 regarding the availability of the portal for electronic recordkeeping reporting.
OSHA has proposed to delay the compliance date of the electronic recordkeeping portion of the new recordkeeping regulation, known as “Improve Tracking of Workplace Injuries and Illnesses,” from July 1, 2017 to December 1, 2017 in order to allow OSHA “the opportunity to further review and consider the rule.” OSHA has also invited the public to comment on the proposed deadline extension. Comments may be submitted electronically at www.regulations.gov, or by mail or fax. The deadline for submitting comments is July 13, 2017
In light of a recent decision from the Indiana Supreme Court, Indiana employers—and construction companies in particular—should review their contracts and subcontracts to determine if they have unwittingly assumed a duty of care for other entities’ employees. In Ryan v. TCI Architects/Engineers/Contractors, Inc. et al., the Court ruled that a general contractor’s “form contract” with its client caused it to assume a duty of care to keep a worksite safe for a sub-subcontractor’s employee—even though the general contractor’s subcontract placed the onus of securing employee safety on the subcontractor. — N.E.3d —, 2017 WL 148885 (Ind. Apr. 26, 2017). As a result of this ruling, a general contractor can potentially be liable to a subcontractor’s employee who suffers a workplace injury.
OSHA has now officially withdrawn the so called “Volks Rule” that had attempted to set a 5 year limitations period for OSHA Recordkeeping violations. The rule received its nickname from the D.C. Circuit Court case that held there was only a 6 month limitations period pursuant to the OSH Act, and the rule was OSHA’s attempt to undue that Circuit Court ruling by promulgating the new regulation in the waning days of the Obama Administration
OSHA has provided notice, in the context of an on-going federal lawsuit, (National Federation of Independent Businesses v. Dougherty, N.D. Tex., No. 16-2568, 4/27/17), that it has rescinded the interpretation letter and removed the guidance from OSHA’s Field Operations Manual (FOM).