Just a few updates on some of the regulations that have been released in the past couple of months.
OSHA Fines to Jump 78% on August 1st – OSHA fines had not risen in 25 years, but that changed last November when Congress passed and the President signed a bipartisan budget bill that included a provision that pinned fines to the inflation rate. OSHA has finally released an Interim Final Rule that raises the fines on August 1st.
Because the fines were way behind, inflation there will be quite a sticker shock in the first year.
- Serious Violation: Penalty goes from $7,000 to $12,471.
- Other-Than- Serious: Penalty goes from $7,000 to $12,471.
- Willful or Repeated Violation: Maximum Penalty goes from $70,000 to $124,709.
- Posting Requirement: Penalty goes from $7,000 to $12,471.
- Failure to Abate: Penalty goes from $7,000 to $12,471.
The fines will automatically rise by the inflation rate in future years.
New OSHA Injury Reporting and Post Incident Drug Tests – OSHA’s new rules on recording injuries contain some language that attempts to stop employers from overusing post-injury drug testing. At first read, it could leave employers wondering if they can still order tests after an incident. OSHA’s intention is to keep employers from using drug tests as a way to discourage workers from reporting injuries. The change takes place August 10.
Several legal experts have started to weigh in and their message is: Don’t Panic!. They refer to the OSHA Final Rule, which said that companies should not have a blanket policy to drug test all workers involved in injuries. OSHA uses three examples when a drug test would not be warrented:
- An ergonomic injury, such as a repetitive stress ergonomic injury,
- A bee sting, or
- An injury where the worker was blameless, such as getting hit by a forklift where the operator was clearly at fault.
The law firm of Constangy Brooks Smith & Prophete LLP has written a very good analysis of the new rule and how employers should address it. For a number of reasons laid out in their review, they believe that most employer post-injury substance testing is still acceptable.
That said, employers really need to review their existing policies, probably with the help of their lawyer, to ensure that they are not simply requiring a blanket testing protocol. The other important takeaway is that the new rule could put a lot of emphasis on testing being done with cause. Since any legal action may come down to a question of what reasonable suspicion the company had for authorizing tests. That means companies should consider whether they need to train supervisors and managers to recognize signs of impairment.
Slips, Trips, and Fall Prevention Rules Under Final Review – OSHA’s long awaited update to its Walking Working Surfaces and Personal Fall Protection Systems regulations have been sent to the White House for review. The agency released its first effort to update the rules with a Notice of Proposed Rulemaking in 1990. It released a second attempt in 2010. Now, the Final Rule is apparently finished. While it is not known what the rule says in detail, it is an attempt to incorporate widely accepted industry practice.
In a normal year, the White House review could be finished later this summer and could have been released in early fall. However, since this is an election year, it is likely to carry over into the next President’s term.