Risk Management

By Randy Boss, CRA, CRM, MWCA, SHRM-SCP

THE RISK OF OSHA FINES

Are your clients prepared?

The presidential election is now behind us, and whether your clients are feeling “blue” or seeing “red,” they need to be prepared because a new Occupational Safety and Health Administration (OSHA) could be knocking at your employer client’s door in 2021. And with a new administration will come some significant changes.

I think the most significant change right out of the gate for employers is that they have to be prepared for a national COVID-19 standard, which is something that everyone is saying we’re going to see soon. Federal OSHA and the 22 state OSHA plans haven’t always agreed. State OSHA plans, such as those in North Carolina and South Carolina, have refused to adopt federal OSHA’s increased maximum penalties, originally adopted under the Obama-Biden administration. Meanwhile, other state plans like Virginia, Michigan, and Oregon have adopted their own Emergency Temporary Standards.

Under the new administration, expect federal OSHA to work more closely with the state OSHA plans and seek more aggressive enforcement from their state counterparts.

Under the new administration, expect federal OSHA to work more closely with the state OSHA plans and seek more aggressive enforcement from their state counterparts. This may very well lead to additional pressure to increase the state plans’ penalties, enforce the 2016 federal OSHA anti-retaliation rule, and require employers to electronically post their OSHA 300 data.

This is no real surprise since the new administration has already gone on record as saying their intent is to make significant changes to how OSHA deals with employers, as it attempts to further protect America’s workforce over the next four years. And it makes sense since we are still in the clutches of a pandemic. One of the first things will be to enforce an Emergency Temporary Standard on what to do to reduce the spread of COVID-19, most likely by working with unions and other groups, as well as having the CDC set guidelines.

Also on the presidential docket will be an increase in the number of OSHA inspectors; they could actually double in number. Reports are that there are approximately 750 OSHA inspectors currently on the job. If that number jumps to upwards of 1,500, there will be no way for employers to feel like an injury might be overlooked by inspectors. Diligence will be the name of the game. And whether it’s Zooming now or connecting in person down the road, look for an increase in OSHA advisory committees and for them to frequently meet to ensure that your employer clients, particularly those in the construction industry, are towing the line.

Perhaps one of the most significant rules potentially looming on the horizon is the restoration of the original Electronic Reporting Rule. When President Biden was playing on Team Obama in 2017, OSHA began requiring certain employers (including those with more than 250 employees at a single location) to report employee injury and illness information. The intent was to post injury details online for public viewing. However, the recent president took that out of play. So watch for the new POTUS to breathe life back into the original rule.

Once this happens, certain employers will be required to post detailed employee injury and illness information (including the information found on OSHA 300 Logs) to OSHA. The safety agency will then put the information on their website so all your employer clients’ dirty laundry will now be waving in the breeze, visible to potential employees, unions, workplace advocacy groups, work injury attorneys and Michael Moore.

But it doesn’t stop there. Under most state OSHA plans, employers must furnish “employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.” This is known as OSHA’s General Duty Clause (GDC). OSHA can nail employers for violation of the GDC if a recognized serious hazard exists in their workplace and the employer does not take reasonable steps to prevent or abate the hazard.

Although this sounds like Job Safety 101, you would be surprised by how many employers think they can circumvent certain rules. Don’t let them. And just to refresh your memory, and theirs, the elements of a violation of the GDC are:

• the employer failed to keep the workplace free of a hazard to which employees of that employer were exposed
• the hazard was recognized
• the hazard was causing or was likely to cause death or serious physical harm
• there was a feasible and useful method to correct the hazard

Look for OSHA under the new administration to immediately begin issuing more GDC citations if employers violate CDC guidelines for health and safety concerns. This will include COVID-19 situations. Although the new vaccines available are extremely encouraging, the disease is not going to come to an abrupt halt. Look for the new administration to resurrect the infectious disease standard and push for its adoption, with the intent that it will serve useful for future pandemics.

This brings us to the 2016 anti-retaliation rule, which prohibits employers from retaliating against employees for reporting work-related injuries or illnesses. The 2016 rule also indicated that blanket automatic post-accident drug testing was improper because it discouraged employees from properly reporting injuries. Well, it turns out that the last administration pretty much swept the rule under the rug and it was rarely enforced. But technically the original version is still in effect, so the new administration will have no problem stepping up reinforcement. When that happens, employers may want to think twice about any blanket post-accident drug testing policies and drug testing when it appears that drug use may have contributed to a workplace incident.

Whether your guy is sitting in the White House, or the other guy is, the bottom line is “everything old is new again.” The new administration has the means and the wherefore to jump-start OSHA’s initiatives and your best clients are right in their path.

Now is the time for businesses to take action to make sure their safety programs are up to speed, and they will be looking to you to make sure they are compliant when the wolf is at their door. That’s because, while you are waiting around to see what happens four years from now, your best clients are vulnerable. And if you don’t step in on their behalf, you can bet very soon that your best clients will be somebody else’s best clients … no matter who is living at 1600 Pennsylvania Avenue.

The author

Randy Boss is a Certified Risk Architect at Ottawa Kent in Jenison, Michigan. As a Risk Architect, he designs, builds and implements risk management and insurance plans for middle market companies in the areas of safety, work comp, human resources, property/casualty and benefits. He has over 40 years’ experience and has been at Ottawa Kent for 38 years. He is the co-founder of emergeapps.com, web apps for insurance agents to share with employers. Randy can be reached at rboss@ottawakent.com.