This article was written by Lindsay A. DiSalvo, Dan C. Deacon, and Eric J. Conn, and originally posted on Conn Maciel Carey’s OSHA Defense Report.

This is your yearly reminder about the important February 1st deadline to prepare, certify and post your OSHA 300A Annual Summary of workplace injuries and illnesses, for all U.S. employers, except those with ten or fewer employees or those whose NAICS code is in the set of low-hazard industries exempt from OSHA’s injury and illness recordkeeping requirements, such as dental offices, advertising services, and car dealers (see the exempted industries at Appendix A to Subpart B of Part 1904).

This February 1st requirement to prepare, certify and post 300A forms should not be confused with OSHA’s new-ish Electronic Recordkeeping Rule.  The February 1st deadline is only about the internal hard copy posting of 300A data for your employees’ eyes.  The E-Recordkeeping Rule, on the other hand, requires certain employers to electronically submit data from their 300A Annual Summary forms to OSHA through OSHA’s web portal – the Injury Tracking Application. The deadline for those submissions this year (i.e., to submit 300A data from 2018) is March 2, 2019.

By February 1st every year, however, employers must:

  • Review their OSHA 300 Log(s);
  • Verify the entries on the 300 Log are complete and accurate;
  • Correct any deficiencies identified on the 300 Log;
  • Use the injury data from the 300 Log to calculate an annual summary of injuries and illnesses and complete the 300A Annual Summary Form; and
  • Certify the accuracy of the 300 Log and the 300A Summary Form.

The Form 300A is a summation of the workplace injuries and illnesses recorded on the OSHA 300 Log during the previous calendar year, as well as the total hours worked that year by all employees covered by the particular OSHA 300 Log.

Five Common 300A Mistakes that Employers Make

We frequently see employers make the following four mistakes related to this annual duty to prepare, post and certify the injury and illness recordkeeping summary:

  1. Not having a management representative with high enough status within the company “certify” the 300A;
  2. Not posting a 300A for years in which there were no recordable injuries;
  3. Not maintaining a copy of the certified version of the 300A form;
  4. Not updating prior years’ 300 Logs based on newly discovered information about previously unrecorded injuries or changes to injuries that were previously recorded; and
  5. Confusing or conflating the requirement to Post a 300A in the workplace with the requirement to electronically submit 300A data to OSHA’s web portal.

1.  Certifying the 300 Log and 300A Annual Summary

The 300 Log and the 300A Annual Summary Form are required to be “certified” by a “company executive.”  Specifically what the company executives are certifying is that they:

  1. Personally examined the 300A Annual Summary Form;
  2. Personally examined the OSHA 300 Log from which the 300A Annual Summary was developed; and
  3. Reasonably believe, based on their knowledge of their companies’ recordkeeping processes that the 300A Annual Summary Form is correct and complete.

A common mistake employers make is to have a management representative sign the 300A Form who is not at a senior enough level in the company to constitute a “company executive.”  As set forth in 1904.32(b)(4), company executives include only the following individuals:

  • An owner of the company (only if the company is a sole proprietorship or partnership);
  • An officer of the corporation;
  • The highest-ranking company official working at the establishment; or
  • The immediate supervisor of the highest-ranking company official working at the establishment.

2.  Posting the 300A Annual Summary

After certifying the 300A, OSHA’s Recordkeeping regulations require employers to post the certified copy of the 300A Summary Form in the location at the workplace where employee notices are usually posted.  The 300A must remain posted there for three months, through April 30th.

Another common mistake employers make is to not prepare or post a 300A Form in those years during which there were no recordable injuries or illnesses at the establishment.  Even when there have been no recordable injuries, OSHA regulations still require employers to complete the 300A form, entering zeroes into each column total, and to post the 300A just the same.

3.  Maintaining a Copy of the 300A for Five Years

After the certified 300A Annual Summaries have been posted between February 1st and April 30th, employers may take down the 300A Form, but must maintain for five years following the end of the prior calendar year at the facility covered by the form or at a central location, a copy of:

  • The underlying OSHA 300 Log;
  • The certified 300A Annual Summary Form; and
  • Any corresponding 301 Incident Report forms.

In this technology era, many employers have transitioned to using electronic systems to prepare and store injury and illness recordkeeping forms. As a result, another common mistake employers make is to keep only the electronic version of the 300A, and not the version that was printed, “certified,” typically by a handwritten signature, and posted at the facility. Accordingly, those employers have no effective way to demonstrate to OSHA during an inspection or enforcement action that the 300A had been certified.

4.  Updates to OSHA Injury and Illness Recordkeeping Forms

Another common mistake employers make is to put away old 300 Logs and never look back, even if new information comes to light about injuries recorded on those logs.  However, OSHA’s Recordkeeping regulations require employers during the five year retention period to update OSHA 300 Logs with newly discovered recordable injuries or illnesses, or to correct previously recorded injuries and illnesses to reflect changes that have occurred in the classification or other details.  This requirement applies only to the 300 Logs; i.e., technically there is no duty to update 300A Forms or OSHA 301 Incident Reports.

5.  Not to be Confused with Electronic Recordkeeping

As mentioned above, the February 1st deadline is separate and apart from the electronic data submission requirement of OSHA’s E-Recordkeeping Rule.  The deadline in 2019 for employers to electronically share data from their 2018 300A forms with OSHA is currently set for March 2, 2019, naturally trailing the deadline to prepare the summary data from which the E-Recordkeeping submission derives.

Note, there are still a few State OSH Programs that have not adopted the E-Recordkeeping Rule, despite OSHA’s directive in the final rule for state plans to adopt substantially identical requirements within six months after its publications, and an April 30, 2018 press release announcing that all employers in State Plan States should implement the Rule. To date, Maryland, Wyoming, and Washington have still not adopted an E-Recordkeeping Rule, and covered establishments in those states are technically not required to submit data by the March 2nd deadline.

The future of the Rule in general, not just those delinquent states, is uncertain.  After years of industry backlash and multiple legal challenges, OSHA issued a Notice of Proposed Rulemaking on July 30, 2018 to revise the E-Recordkeeping Rule.  Rather than settling the status of the E-Recordkeeping Rule, this proposal will likely just mire the rule in further controversy.  Here specifically is what the proposal entails:

  • Amend 29 C.F.R. § 1904.41 by removing the requirement for establishments with 250 or more employees to electronically submit information from OSHA Forms 300 and 301; and
  • Require employers to submit their Employer Identification Number (EIN) along with the data.

83 Fed. Reg. 36494 (July 30, 2018).

The Proposed Rule includes only one significant change to the current regulation – eliminating the requirement for the largest employers (those with establishments with 250+ employees), to annually submit to OSHA the data from their 300 logs and 301 detailed incident reports.  However, the proposal leaves intact the concerning requirements for these large employers and many smaller employers to annually submit 300A annual summary data, and does not touch the troubling anti-retaliation provisions (e.g., limits to post-injury drug testing and safety incentive programs).  There are also pending cases in federal courts challenging the data submission and anti-retaliation requirements.

All of that is to say, the future of E-Recordkeeping is not entirely clear… unlike the well-established duty to post those 300A forms in a couple of weeks!

  • 11/29/2018 – Region 4 OSHA News Release – U.S. Department of Labor Cites Florida Property Maintenance Company After Employee Suffers Burn Injuries
  • 11/28/2018 – Region 4 OSHA News Release – U.S. Department of Labor Announces Initiative to Increase Awareness Of Trenching and Excavation Hazards and Solutions
  • 11/27/2018 – Region 4 OSHA News Release – U.S. Department of Labor Cites Two Florida Roofing Contractors For Exposing Employees to Fall Hazards
  • 11/27/2018 – Region 9 OSHA News Release – U.S. Department of Labor Issues Notices of Safety Violations Following Fatality at Army Reserve Facility in California
  • 11/26/2018 – Region 4 OSHA News Release – U.S. Department of Labor Cites Florida Roofing Contractor For Repeatedly Exposing Employees to Fall Hazards
  • 11/23/2018 – Region 4 OSHA News Release – U.S. Department of Labor Cites Alabama Food Processor For Amputation and Other Hazards
  • 11/20/2018 – OSHA National News Release – U.S. Department of Labor Announces Assistance for California Wildfires Recovery
  • 11/20/2018 – OSHA National News Release – U.S. Department of Labor Focuses on Worker Safety and Pay During Holiday Shopping Season
  • 11/19/2018 – Region 2 OSHA News Release – U.S. Department of Labor Cites New Jersey Manufacturer
  • 11/19/2018 – Region 4 OSHA News Release – U.S. Department of Labor Continues to Provide Support in Areas Hardest Hit by Hurricane Michael
  • 11/16/2018 – Region 4 OSHA News Release – U.S. Department of Labor Cites Florida Window and Door Manufacturer After Employee Suffers Partial Finger Amputation
  • 11/16/2018 – Region 7 OSHA News Release – U.S. Department of Labor Cites Nebraska Staffing Agency Following Heat-Related Fatality

 

  • 04/30/2018 – OSHA Trade Release – U.S. Department of Labor Fixes Error Dating to 2016 Implementation of “Improve Tracking of Workplace Injuries and Illnesses” Regulation
  • 04/27/2018 – OSHA Trade Release – Statement by Deputy Assistant Secretary of Labor for Occupational Safety and Health Loren Sweatt on Workers’ Memorial Day 2018
  • 04/27/2018 – Region 6 OSHA News Release – U.S. Department of Labor and Association of Energy Service Companies Renew Alliance to Keep Texas Oil and Gas Employees Safe
  • 04/26/2018 – Region 4 OSHA News Release – U.S. Department of Labor and Florida Roofing Contractor Settle Lawsuit on Whistleblower Allegations
  • 04/23/2018 – Region 4 OSHA News Release – U.S. Department of Labor, Georgia Tech, and Georgia Department Of Public Health Form Alliance to Reduce Lead Exposure
  • 04/23/2018 – Region 5 OSHA News Release – U.S. Department of Labor Proposes Penalties for Farm Supply Company For Operating Damaged Forklift at its Ohio Facility
  • 04/20/2018 – Region 5 OSHA News Release – U.S. Department of Labor Cites Ohio Plastics Company, Proposes $261,454 in Penalties for Workplace Safety Hazards
  • 04/20/2018 – Region 9 OSHA News Release – U.S. Department of Labor Orders California Company to Pay $110,000 To Manager Who Reported Concerns Regarding E-Cigarette Ingredients
  • 04/17/2018 – OSHA Trade Release – OSHA Flier Offers Steps to Keep Tractor Trailer Drivers Safe at Destination
  • 04/17/2018 – Region 7 OSHA News Release – U.S. Department of Labor Cites Nebraska Company For Exposing Employees to Trenching Hazards
  • 04/17/2018 – Region 8 OSHA News Release – U.S. Department of Labor Cites Contractor for Exposing Workers to Trenching, Other Safety Hazards on North Dakota Municipal Project

 

  • 03/28/2018 – Region 1 OSHA News Release – U.S. Department of Labor Orders Reinstatement of Massachusetts Pilot Who Lost Job after Reporting a Safety Concern
  • 03/27/2018 – Region 1 OSHA News Release – U.S. Department of Labor Cites Massachusetts Contractor for Fall Hazards at New Hampshire Work Site
  • 03/27/2018 – Region 4 OSHA News Release – U.S. Department of Labor Cites Communication Tower Contractor Following Three Fatalities at Miami Work Site
  • 03/23/2018 – Region 4 OSHA News Release – U.S. Department of Labor Cites Roofing Contractor For Exposing Employees to Fall Hazards, Proposes Penalties
  • 03/16/2018 – Region 2 OSHA News Release – U.S. Department of Labor Proposes Penalties for Waterloo, New York, Dairy Producer for Failing to Correct Hazards
  • 03/16/2018 – Region 4 OSHA News Release – U.S. Department of Labor Cites Florida Roofing Company After Employee Suffers Fatal Heat-Related Injury
  • 03/16/2018 – Region 5 OSHA News Release – U.S. Department of Labor and Ohio Auto Parts Manufacturer Reach Settlement Agreement, Including $1 Million Penalty
  • 03/16/2018 – Region 5 OSHA News Release – U.S. Department of Labor Cites Kraft Heinz Food After Employee Injured by Machine, Proposes Penalties
  • 03/16/2018 – Region 7 OSHA News Release – U.S. Department of Labor Cites Nebraska Egg Processing Facility After Employee Fatally Injured
  • 03/15/2018 – Region 1 OSHA News Release – U.S. Department of Labor Orders JetBlue to Reinstate and Pay Back Wages and Damages to Flight Attendant
  • 03/15/2018 – Region 3 OSHA News Release – U.S. Department of Labor Recognizes BAE Systems For Excellence in Workplace Safety at Norfolk Repair Facility

In the “better late than “never” category, OSHA announced today that it will still accept 300A annual summary injury data for calendar year 2016 through OSHA’s on-line Injury Tracking Application (ITA) (https://www.osha.gov/injuryreporting/index.html) until midnight on December 31, 2017.  If submitted by then, but after the official December 15th deadline, OSHA announced that no enforcement action would be taken.

Additional details are in the OSHA announcement linked here

  • 11/29/2017 – Region 3 OSHA News Release – U.S. Department of Labor Fines US Environmental Inc. for Safety Violations and Proposes Penalties Totaling $333,756
  • 11/28/2017 – Region 6 OSHA News Release – U.S. Department of Labor and Pottery Manufacturer Reach Settlement Agreement Following Worker Fatality
  • 11/22/2017 – OSHA National News Release – U.S. Department of Labor’s OSHA Extends Compliance Date for Electronically Submitting Injury, Illness Reports to December 15, 2017
  • 11/17/2017 – Region 4 OSHA News Release – U.S. Department of Labor Cites Tampa Electric Co. And Critical Intervention Services Following Hazardous Chemical Release
  • 11/17/2017 – Region 5 OSHA News Release – U.S. Department of Labor Proposes Over $1.8 Million in Fines Against a Wisconsin Corn Milling Facility After Fatal Grain Dust Explosion
  • 11/09/2017 – OSHA Trade Release – OSHA Issues Final Rule Setting Compliance Date for Crane Operator Certification Requirements
  • 11/09/2017 – Region 1 OSHA News Release – U.S. Department of Labor Cites Lynnway Auto Auction For Exposing Employees to Numerous Hazards
  • 11/09/2017 – Region 2 OSHA News Release – U.S. Department of Labor Again Cites Three Queens Supermarkets For Safety Violations
  • 11/08/2017 – Region 7 OSHA News Release – U.S. Department of Labor Cites Bimbo Bakeries USA For Multiple Workplace Hazards
  • 11/08/2017 – Region 7 OSHA News Release – U.S. Department of Labor Cites Farmers Cooperative After Worker Entrapped in Grain Bin
  • 11/08/2017 – Region 7 OSHA News Release – Missouri Podiatry Clinic Cited for Improper Handling of Medical Waste
  • 11/08/2017 – Region 8 OSHA News Release – U.S. Department of Labor Cites Contractors in Montana Following Severe Burns
  • 11/07/2017 – Region 4 OSHA News Release – U.S. Department of Labor Cites Georgia Parts Manufacturer After Injuries Reveal Hazards
  • 11/07/2017 – Region 4 OSHA News Release – U.S. Department of Labor Resumes Regular Enforcement in Florida and Georgia
  • 11/02/2017 – OSHA Trade Release – U.S. Department of Labor Signs Alliance with Robotic Industries Association and NIOSH to Improve Worker Protections in Emerging Tech Industry
  • 11/01/2017 – Region 4 OSHA News Release – U.S. Department of Labor Cites Mississippi Company for Exposing Workers To Hazardous Energy, Equipment, and Other Hazards
  • 11/01/2017 – Region 10 OSHA News Release – U.S. Department of Labor Cites Boise Construction Company For Trenching Violations

 

In late October, President Trump nominated FedEx Ground official, Scott Mugno, as OSHA Director. Many critics of this Administration will be surprised to learn that Mr. Mugno appears to have an open mind and is not planning on dismantling the agency. Mugno has earned significant praise for his work at FedEx where he served as the vice president for safety, sustainability and vehicle maintenance and received the company’s highest honor, the FedEx Five Star Award, for his safety work. Administrator Mugno’s approach will likely be more business-friendly through a focus on compliance assistance measures versus aggressive enforcement or new regulations. But focusing on compliance assistance is a far cry from a free pass. While Mr. Mugno’s experience will help him appreciate the compliance challenges faced by the regulated community, his experience will also help him recognize which bad actors are phoning it in on worker safety.

 

 

Written with assistance from Ana Ramirez.

On September 26th, OSHA announced that citations for 9 out of the 10 most frequently cited standards noticeably declined since fiscal 2016. According to OSHA data, preliminary violation[1] numbers from last fiscal year dropped following years of declining total inspection numbers.  Deputy Director of the OSHA enforcement branch, Patrick Kapust, particularly noted the steep decline in fall protection citations.  Kapust also mentioned that construction fall-related violations, such as ladders, scaffolding, and training,  remain the most commonly cited, and that construction sites account for close to half of OSHA’s inspections. For your reference, here is the list of preliminary top 10 most-cited violations for fiscal 2017:

  1. Fall protection at 6,072 (down from 6,929 preliminary violations in fiscal 2016)
  2. Hazard communication at 4,176 (down from 5,677 preliminary violations in fiscal 2016)
  3. Scaffolding at 3,288 (down from 3,906 preliminary violations in fiscal 2016)
  4. Respiratory protection at 3,097 ( down from 3,585 preliminary violations in fiscal 2016)
  5. Lockout/tagout at 2,877 (down from 3,414 preliminary violations in fiscal 2016)
  6. Ladders at 2,241 (down from 2,639 preliminary violations in fiscal 2016)
  7. Powered industrial trucks at 2,162 (down from 2,860 preliminary violations in fiscal 2016)
  8. Machine guarding at 1,933 (down from 2,451 preliminary violations in fiscal 2016)
  9. Fall protection training at 1,523
  10. Electrical wiring methods at 1,405 (down from 1,940 preliminary violations in fiscal 2016)

 

 

 

 

Written with assistance from Ana Ramirez

[1] The violation numbers are preliminary because OSHA inspectors have up to six months following an inspection to issue citations.

Interested in providing input on the OSHA’s Voluntary Protection Programs (“VPP”)?  The next and final in-person meeting is scheduled for August 28, 2017. If you happen to miss it, worry not, OSHA will accept public comments through September 15, 2017. Here are a few areas OSHA is brainstorming: overall VPP process and flow; corporate/long-term participant involvement; and Special Government Employee activities.

 

The Occupational Safety and Health Administration (“OSHA”) remains Administrator-less seven months into President Trump’s administration with the recent retirement of the former acting assistant secretary, Dorothy Dougherty, and the absence of a nomination from the White House. Despite the power vacuum, OSHA has been forced to remain active on regulations and standards teed up by the outgoing administration and targeted for revision or rescission by opponents of the prior administration’s actions.  These actions include changing the scope of the beryllium standard, delaying the effective date of the injury and illness rule, and signing off on a Congressional vote overturning the Volks rule (which would have rendered meaningless the statute of limitations for recordkeeping violations).

While we are not surprised that even a rudderless OSHA is managing to tick off a few of the Trump Administration’s key agenda items, what about the rest of the stuff OSHA does?    What do the majority of the 2000+ OSHA employees do under a new President and after seven months without a boss?   According to Mark Konkel (our labor law expert in NY and all around good dude), most OSHA employees are probably still working on what they have always been working on.   “ . . .day to day, a giant administrative bureaucracy with thousands of employee is running—meaning that policy momentum will guide what they do in the absence of new top-down direction under the Trump administration.”  He also notes that “this may have the effect of extending Obama-era policy direction, because there’s nothing new to interrupt the old direction.”  Mark is as wise as he is handsome – and that’s why we hate him…

So what is with the delay in naming a new OSHA Administrator?   Maybe nothing.   President Barack Obama did not appoint an OSHA Administrator (Dr. David Michaels) until late July of his first term and President George W. Bush waited mid-September of his first term to appoint Edwin Foulke.  Given the general slow pace of nominations on other agencies and the fact that President Trump was compelled to “do over” his nomination for Secretary of Labor, we wouldn’t be too surprised to see this nomination delayed well into the fall.  

Guesses on who it will be?   Our NSFW rumor mills have heard mention of Tom Galassi (head of the agency’s enforcement directorate), Scott Mugno (vice president of safety, sustainability and vehicle maintenance at FedEx Ground), and James Thornton (safety director at shipbuilder Huntington Ingalls Industries in Norfolk, VA).  Any guesses from our tens of devoted NSFW readers?   (Hi Mom!)