OSHA What to Look for in 2019 and Beyond

1. OSHAWhat to Look for in 2019 and Beyond 2019 Spring SLMA Meeting Savannah, GA March 7, 2019

2. Occupational Safety and Health Administration Topics Covered OSHA Guidance OSHA Priorities What to Watch For Key Takeaways

3. President Trump’s OSHA Priorities Ease the regulatory burden on businesses Photo credit: Saul Loeb/AFP

4. Easing the Regulatory Burden on Business Electronic Reporting • After the first year, all employers with 250 or employees also must submit their OSHA Form 301 Incident Reports and the OSHA 300 Log, along with the Form 300A, electronically to OSHA. • OSHA will publish the data on a publicly accessible website. • All covered employers must still submit their Form 300A electronically to OSHA each year on March 2. • OSHA’s Site-Specific Targeting program will use 2016 data to create inspection lists. • 2016 Final Rule Requirements • Beginning in July 2017, all employers with 250 or more employees and employers with 20-249 employees in high-risk industries must submit their OSHA Form 300A electronically to OSHA. • After the first year, all employers with 250 or employees also must submit their OSHA Form 301 Incident Reports and the OSHA 300 Log, along with the Form 300A, electronically to OSHA. • OSHA will publish the data on a publicly accessible website.

5. Safety Incentive Programs • If an employee reports an injury or illness, is the employee’s team disqualified from receiving a benefit under the program? If yes, problematic. • 2016 Final Rule Requirements • Employers must not use incentive programs in a way that punishes workers for reporting work-related injuries or illnesses. • If an employee reports an injury or illness, is the employee disqualified from receiving a benefit under the program? If yes, problematic.

6. Safety Incentive Programs • Examples of adequate precautions: • A training program for all employees to reinforce reporting rights and responsibilities and emphasize the employer’s non-retaliation policy. • A mechanism for accurately evaluating employees’ willingness to report injuries or illnesses. • An incentive program that rewards employees for identifying unsafe workplace conditions. • Clarification of OSHA’s Position on Workplace Safety Programs and Post-Incident Drug Testing • Rate-based safety incentive programs that award a prize or bonus after a injury-free month (or other period of time) are permissible as long as they are implemented in a manner that does not discourage reporting. • An employer may take a negative action against an employee under a rate-based incentive program as long as the employer has implemented adequate precautions to ensure that employees feel free to report an injury or illness.

7. Workplace Drug Testing • If you choose to drug test employees to investigate an incident that harmed or could have harmed employees, you should test all employees whose actions could have contributed to the accident, not just employees who reported injuries. • Clarification of OSHA’s Position on Workplace Safety Programs and Post-Incident Drug Testing • Permissive Workplace Drug Testing • Random drug testing. • Drug testing unrelated to the reporting of a work-related injury or illness. • Drug testing under a state workers compensation law. • Drug testing under another federal law, such as a U.S. Department of Transportation Rule. • Drug testing to evaluate the root cause of a workplace accident that harmed or could have harmed employees.

8. Combustible Dust • OSHA can cite businesses under the general duty standard and under industry consensus standards. • Other groups are weighing in. • The combustible dust standard is no longer a regulatory priority for OSHA. • Look to industry consensus standards for guidance and best practices. • NFPA 652: Standard on Fundamentals of Combustible Dust • Current edition was issued in Fall 2018. • NFPA 664: Standard for the Prevention of Fires and Explosions in Wood Processing and Woodworking Facilities • Next edition will be issued in Fall 2020.

9. What To Look for in 2019 and Beyond Occupational Safety and Health Administration

10. OSHA Inspections • OSHA’s enforcement efforts are holding steady: Total Federal OSHA Inspections Be prepared!

11. OSHA Assistant Secretary of Labor • President Trump’s nominee for Assistant Secretary of Labor awaits confirmation.

12. Pop Quiz!

13. Key Takeaways

14. Recordkeeping and Reporting • Prepare the OSHA Form 300 Log and OSHA Form 301 Incident Reports in a timely manner. • Promptly report workplace injuries when required. • Post the OSHA Form 300A Annual Summary every year from February 1 to April 30. • Submit the prior year’s OSHA Form 300A data electronically to OSHA each year on March 2.

15. Stay Updated on Industry Standards • Complete a Dust Hazard Analysis, as required under NFPA 652, by September 2020. • Implement all recommendations no later than one to two years after the DHA. • Look out for NFPA 664 standard for Wood Processing and Woodworking Facilities in Fall 2020.

16. Be Prepared for an OSHA Inspection • Be proactive in addressing safety hazards. • Make sure required OSHA records are complete and accessible. • Injury and illness reports • Training records • Equipment records • Electrical tests • Other mandatory records and certifications

17. Be Prepared for an OSHA Inspection • Identify and train employees to accompany the OSHA compliance officer. • Take pictures of everything the OSHA inspector takes pictures of. • Take detailed notes. • Employee Interviews • Managers and supervisors may have a Company attorney present.

18. Questions?

19. Services OSHA Counseling and Litigation EEO Litigation Minimum Wage and Overtime Litigation NOELLE A. ABASTILLAS Kilpatrick Townsend & Stockton LLP 1100 Peachtree Street NE Suite 2800 Atlanta, Georgia 404.815.6056 nabastillas@kilpatricktownsend.com