Tag: OSHA

What to Do When OSHA Shows Up (and How to Handle OSHA Violations)

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“Someone from OSHA is here to look around.”

You can never be too ready to hear these words.  Whether there’s been an incident and you were thus expecting a visit from the Occupational Safety and Health Administration (OSHA) – or not, these inspections are normally conducted without formal advance notice. And that can be a little…unsettling.

Despite the surprise nature of OSHA visits, you can and should prepare your management team ahead of time for the possibility of playing host to one of their compliance officers, even if you have an excellent workplace safety program.

This article will help you understand:

  • The reasons OSHA may come on-site
  • What may occur during an inspection
  • General OSHA violation types and penalties
  • Possible courses of action after inspection

What to Do When OSHA Shows Up

OSHA officers should follow a specific, systematic process when inspecting workplaces, including:

  • Presenting his or her credentials upon request
  • An opening conference
  • A walk-through
  • A closing conference

 

Here are five things you can do to make your time with the inspector go smoothly.

1. Verify the officer’s credentials.

Unfortunately, there are people who try to falsely impersonate OSHA inspectors, scamming business owners into paying fake fines.

A legitimate officer from OSHA will show his or her credentials, which should include both a photograph and a serial number. It’s a good idea to go one step further and call your local OSHA office and verify those credentials to ensure you’re dealing with a real inspector.

2. Limit your visit to what the officer has asked to see.

During the opening meeting, OSHA inspectors generally identify the scope of the investigation. You may ask specifically why they’re visiting your worksite (e.g., because someone called about a blocked emergency exit in the back of your building).

If they’re there to see something specific or ask for specific documentation, then limit the scope of their visit only to what they’ve asked to see.

Remember: Every OSHA violation a compliance officer sees can be cited.

3. Address any quick fixes during the walk-through.

If you have to take the OSHA inspector to a part of your building where they notice something that you can fix right away, then address it on the spot.

Employers acting in good faith may reduce penalties for employers. During the inspection, you can display good faith by:

  • Cooperating with the officer
  • Applying recommendations immediately when possible
  • Responding promptly to requests for information or documents


4. Stay with the officer the entire time.

OSHA has the right to interview your employees privately outside of your presence. But aside from that, you have the right to walk beside the compliance officer throughout the inspection’s entire duration.

Take pictures of what the inspector photographs, and note what the compliance officer notes. Document as much as you can from the visit. This will help you prepare your organization to address any violations that were observed.

5. Be courteous.

Treat OSHA inspectors politely, just like you would a customer or vendor.

For example, if you’re missing a document that the officer wants to see, and you’re able to get it quickly, then find the inspector a comfortable chair and offer a cup of coffee and a doughnut.

Multi-employer Citation Policy

In a multi-employer worksite, more than one employer may be cited for a hazardous condition that violates an OSHA standard. OSHA takes two steps in this process:

Step 1: OSHA will determine whether the employer is a creating, exposing, correcting or controlling employer (definitions can be found on the OSHA website).

Step 2: If the employer falls into one of these categories, it may have obligations with respect to OSHA requirements.

OSHA Violation Types and Penalties

If your inspector found your business to be in violation of OSHA standards or observed serious hazards, OSHA may issue you citations and fines that include:

  • A description of the OSHA requirements you allegedly violated
  • A list of any proposed penalties
  • A deadline for correcting the alleged hazards

 

With few state exceptions, these are the types of OSHA violations, ordered from highest to lowest penalty amounts:

Willful – When there is intentional disregard for OSHA requirements or a plain indifference to employee safety and health (not eligible for good faith adjustments)
Repeated – When the same or substantially similar condition or hazard has been cited within the last five years
Failure to abate – When a violation from a prior inspection has not been brought into compliance (fines are assessed per day beyond the deadline)
Serious – When there’s a substantial probability that death or serious physical harm could result from a condition that exists
Other-than-serious – When a hazardous condition would probably not cause death or serious physical harm, but would have a direct and immediate relationship to the safety and health of employees
De minimis – When an employer has implemented a measure different from one specified in a standard, but doesn’t affect employee safety or health (does not result in penalties)

Possible Courses of Action After Inspection

It’s always a good idea to engage in legal counsel to help you walk through your organization’s response to any OSHA violations.

Your options are to either comply with OSHA or to contest their findings.

If you choose to comply, you must:

  1. Take the appropriate corrective action before OSHA’s deadline.
  2. Notify the area director by signed letter.
  3. Pay any penalties.


If you are challenging any of your OSHA violations, the proposed fines or the abatement date for the violations, you have 15 days from the receipt of the letter to notify OSHA in writing of your intentions to contest.

As a first step during this period of time, make an appointment to go see your local area manager, who sets the penalty amounts.

If you can show your area manager that you have addressed the violations, he or she may be willing to reduce your fines.

OSHA may choose to adjust the final penalties based on:

  • The size of the business
  • The good faith of the employer
  • The history of previous violations

Other things that can help reduce OSHA penalties are:

  • Having a good safety record
  • Implementing a written safety program
  • Showing employee exposures were limited
  • Acting in good-faith
  • Fixing other-than-serious violations within 24 hours
  • Proving financial hardship

Rebounding After OSHA Citations

Honest mistakes and poor decisions can result in hazards or safety violations even in seemingly very safe work environments.

How you handle an OSHA inspection says a lot more about your company than whether or not you’ve been visited at all.

Cooperate with your compliance officer, show good faith and be as prepared and proactive as you can about your employees’ health and safety, and your organization will come out stronger in the end.

Employment Law Updates: January 2021

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Federal Law Updates: January 2021

Ten Federal along with D.C and three State Law Updates have been issued.  Our HR Advisors are versed and ready to answer your toughest HR questions to help your company through working remotely, coming back to work and all year long.

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January 2021 Law Alert Map

Labor Law Updates for January 2021

1

CDC COVID-19 Workplace Testing Guidelines Emphasize Consent and Disclosure

The CDC updated guidance on COVID-19 Workplace testing.

On January 21, 2021, the Centers for Disease Control (CDC) updated its guidance on COVID-19 workplace testing. The guidance emphasizes that workplace-based testing should not be conducted without employees informed consent so they understand the testing process and may act independently to make choices that align with their values, goals, and preferences.

The guidance details the disclosures that an employer must provide to its employees, for instance:

  • Test manufacturer, name, purpose, and type.
  • How the test will be performed.
  • Known and potential risks of harm, discomforts, and benefits of the test.
  • What a positive or negative test result means, including: 
    • Test reliability and limitations; and
    • Public health guidance to isolate or quarantine at home, if applicable.

The guidance also addresses topics employers should be prepared to discuss with their employees, such as test scheduling and payment, testing sites, communication and interpretation of results, employee privacy, and how to get assistance.

The CDC also provides a SARS-CoV-2 Testing Strategy: Considerations for Non-Healthcare Workplaces website, updated October 21, 2020, which identifies additional, important disclosures that employers should give to employees contemplating testing.

2

DOL Opinion Letters Addressing FLSA Exemptions and Worker Classification

The DOL released a new opinion letter addressing FLSA compliance.

On January 19, 2021, the U.S. Department of Labor released the following new opinion letters addressing Fair Labor Standards Act (FLSA) compliance:

  • FLSA2021-6: Addressing whether the FLSA’s “retail or service establishment” exemption applies to staffing firms that recruit, hire, and place employees on assignments with clients. 
  • FLSA2021-7: Addressing whether certain local small-town and community news source journalists are creative or learned professionals under Section 13(a)(1) of the FLSA. 
  • FLSA2021-8: Addressing whether certain distributors of a manufacturer’s food products are employees or independent contractors under the FLSA. 

FLSA2021-9: Addressing whether requiring tractor-trailer truck drivers to implement legally required safety measures creates control by the motor carrier for worker classification (employee or independent contractor) under the FLSA and whether certain owner-operators are correctly classified as independent contractors.

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3

DOL Releases Opinion Letters for Two FLSA Topics: Tipped Workers and Establishment Workers

The DOL released an opinion letter regarding two FLSA topics.

On January 15, 2021, the U.S. Department of Labor released the following Fair Labor Standards Act (FLSA) opinion letters:

  • FLSA 2021-5: This letter provided a step-by-step calculation of overtime pay under the FLSA when a tipped employee works as a server and bartender, receives tips, and also receives automatic gratuities or service charges.
  • FLSA 2021-4: This letter found that a restaurant can implement a nontraditional tip pool under the FLSA’s new regulatory changes, not yet effective but set to be soon, so long as it does not include any managers or supervisors, the employer does not take a tip credit, and it pays the full minimum wage to both the tipped employees (servers) who contribute to the pool and the non-tipped employees (hosts or hostesses) who receive tips from the pool. A nontraditional tip pool includes both tipped employees and non-tipped employees.

FLSA 2021-3: This letter assessed three different entities and whether they satisfy the FLSA’s establishment requirement, which provides an exemption from minimum wage and overtime provisions for workers of an amusement or recreational establishment, and whether an accrual method of accounting may be used to satisfy the FLSA’s Receipts Test.

4

EEOC and Religious Discrimination Clarifications

The EEOC approved revisions to its Compliance Manual Section on Religious Discrimination.

On January 15, 2021, the U.S. Equal Employment Opportunity Commission (EEOC) approved revisions to its Compliance Manual Section on Religious Discrimination. The updated guidance describes how Title VII of the Civil Rights Act of 1964 protects against religious discrimination in the workplace and details legal protections available to religious employers. Importantly, the EEOC states that “the manual does not have the force and effect of law and is not meant to bind the public in any way. It is intended to provide clarity to the public on existing requirements under the law and how the EEOC will analyze these matters in performing its duties.”

5

Replacement Sticker Extending Permanent Resident Card (Green Card) Validity and Form I-9

The USCIS announces it is replacing the current sticker extending the validity of a Form I-551, PRC or Green Card.

On January 12, 2021, the U.S. Citizenship and Immigration Services (USCIS) announced that it is replacing the currently issued sticker that extends the validity of a Form I-551, Permanent Resident Card (PRC), or Green Card, with a revised Form I-797, Notice of Action, receipt notice of Form I-90, Application to Replace Permanent Resident Card. The revised notice will extend the validity of a PRC for 12 months from the “Card Expires” date on the front of the PRC. This change ensures that certain lawful permanent residents have documentation for completing Form I-9, Employment Eligibility Verification.

Employees may present their expired PRC together with this notice as an acceptable List A document that establishes identity and employment authorization for Form I-9 purposes. When completing a Form I-9, employers should enter the information from this document combination in Section 2, under List A:

  • In the Document Number field, enter the card number provided on the expired PRC. 
  • In the Expiration Date field, enter the date that is 12 months from the “Card Expires” date on the expired PRC.
  • In the Additional Information box, write “PRC Ext” and the I-90 receipt number from the Form I-797.

Employers who retain copies of documents should retain copies of both the PRC and Form I-797 with the employee’s Form I-9. Employers may not reverify Lawful Permanent Residents who present this document combination.

Read more about acceptable documents at I-9 Central or in The Handbook for Employers, Guidance for Completing Form I-9.

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6

FLSA Opinion Letters: Administrative Employee Exemption and Ministerial Exception

The U.S. DOL announces new opinion letter related to the FLSA.

On January 8, 2021, the U.S. Department of Labor announced the following new opinion letters that provide compliance assistance related to the federal Fair Labor Standards Act (FLSA): 

  • FLSA2021-1: Addressing whether account managers at a life science products manufacturer qualify for the administrative employee exemption under the FLSA. The DOL concluded that the account managers were administrative employees because they met all three requirements, discussed thoroughly in the letter, necessary to qualify for the exemption (from the FLSA minimum wage and overtime pay requirements).

FLSA2021-2: Addressing whether the ministerial exception allows a private religious daycare and preschool to pay its teachers on a salary basis that would not otherwise conform with the requirements of the FLSA. The DOL concluded that the exception would allow the school to do so if the teachers qualify as ministers.

7

OSHA Penalty Amount Increases

The U.S. DOL announces adjustments to the OSHA.

On January 8, 2021, the U.S. Department of Labor announced the following 2021 adjustments to the Occupational Safety and Health Administration (OSHA) civil penalty amounts:

  • Serious violations: minimum of $964 per violation and maximum of $13,653 per violation.
  • Other-than-serious violations: minimum of $0 per violation and maximum of $13,653 per violation.
  • Willful or repeated violations: minimum of $9,639 per violation and maximum of $136,532 per violation.
  • Posting requirements violations: minimum of $0 per violation and maximum of $13,653 per violation.
  • Failure to abate violation: $13,653 per day unabated beyond the abatement date, which is generally limited to 30 days maximum.

These increases apply to penalties assessed after January 15, 2021.

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8

Final Rule Clarifies Independent Contractor Status under the Fair Labor Standards Act

DOL announces a final rule clarifying employee vs. independent contractor under the FLSA.

On January 6, 2021, the U.S. Department of Labor, Wage and Hour Division announced a final rule clarifying whether an individual is an employee or an independent contractor under the Fair Labor Standards Act (FLSA). The rule:

  • Reaffirms the “economic reality” test  which determines whether an individual is in business for themselves (independent contractor) or is economically dependent on a potential employer for work (FLSA employee). 
  • Identifies and explains two core factors to determine whether a worker is economically dependent on someone else’s business (employee) or is in business for themselves (independent contractor): 
    • The nature and degree of control over the work; and
    • The worker’s opportunity for profit or loss based on initiative and/or investment.

If those two primary core factors do not point to the same classification, then the rule identifies the following additional factors to determine status:

  • The amount of skill required for the work;
  • The degree of permanence of the working relationship between the worker and the potential employer; and
  • Whether the work is part of an integrated unit of production.

The rule also:

  • Identifies that the actual practice of the worker and the potential employer is more relevant than what may be contractually or theoretically possible.
  • Provides six fact-specific examples applying the factors.

The rule is effective March 8, 2021.  

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9

COVID-19 Relief for Employers Using the Automobile Lease Valuation Rule

DOL announces a final rule clarifying employee vs. independent contractor under the FLSA.

On January 4, 2021, the Internal Revenue Service released Notice 2021-07 which provides temporary relief in response to the ongoing COVID-19 pandemic for employers using the automobile lease valuation rule to value an employee’s personal use of an employer-provided automobile for:

  • Income inclusion;
  • Employment tax; and
  • Reporting.

Due solely to the COVID-19 pandemic, if certain requirements are satisfied, employers and employees using the automobile lease valuation rule to determine the value of an employee’s personal use of an employer-provided automobile may instead use the vehicle cents-per-mile valuation rule beginning March 13, 2020.

10

2021 IRS Forms

New publications and forms released by the IRS.

On December 31, 2020 and January 5, 2021, the federal Internal Revenue Service released the following new forms and publications, among many others, for use in 2021:

  • Form W-4 – Employee’s Withholding Certificate
  • Form W-4P – Withholding Certificate for Pension or Annuity Payments
  • Publication 531 – Reporting Tip Income
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State Specific Labor Law Updates:

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SPECIAL Employment Law Updates | March 2020

Posted on by try HRIS

As Coronavirus takes over our daily lives, the Federal and State Government release statements, information and business loans. We wait to hear final approval from the Senate for the proposed FMLA temporary updates for the Coronavirus Relief Bill and will update you here as soon as it passes.

Every industry is drowning in HR questions and our HR Advisors are prepared for every one of yours. Our online training keeps your employees learning and engaged remotely. We are ready to help you navigate during this crisis and all year long, for only $99 a month. 

March 2020 Employment Law Updates

19 States so far have released Employment Law Updates and Coronavirus Response Statements. 

Download Coronavirus Toolkit

Employment Law Updates: March 2020

Download All Updates

1

SBA Disaster Assistance in Response to COVID-19

Specific States and Territories are offering low interest business loans. These locations are expanding, continue to check back if your area isn’t listed yet.

The U.S. Small Business Administration (SBA) is offering designated states and territories low-interest federal disaster loans for working capital to small businesses suffering substantial economic injury as a result of the Coronavirus (COVID-19). Upon a request received from a state’s or territory’s Governor, SBA will issue under its own authority, as provided by the Coronavirus Preparedness and Response Supplemental Appropriations Act that was recently signed by the President, an Economic Injury Disaster Loan declaration.

Read more on the SBA’s website.

2

IRS, Coronavirus (COVID-19), and High-Deductible Health Plans

The Internal Revenue Service (IRS) released Notice 2020-15 for high deductible health plans and expenses related to 2019 novel coronavirus (COVID-19).

On March 11, 2020, the Internal Revenue Service (IRS) released Notice 2020-15 for high deductible health plans and expenses related to 2019 novel coronavirus (COVID-19) stating that, until further guidance is released, a health plan that otherwise satisfies the requirements of a high deductible health plan (HDHP) under I.R.C. § 223(c)(2)(A) will not fail to be an HDHP merely because it provides health benefits associated with testing for and treatment of COVID-19 without a deductible, or with a deductible below the minimum deductible (self only or family) for an HDHP. Therefore, an individual covered by the HDHP will not be disqualified from being an eligible individual under § 223(c)(1) who may make tax-favored contributions to a health savings account (HSA). 

This does not modify previous guidance with respect to the requirements of an HDHP in any manner other than with respect to the relief for testing for and treatment of COVID-19. Vaccinations continue to be considered preventive care under § 223(c)(2)(C) for purposes of determining whether a health plan is an HDHP. Rather, the notice provides flexibility to HDHPs to provide health benefits for testing and treatment of COVID-19 without application of a deductible or cost sharing. Individuals participating in HDHPs or any other type of health plan should consult their particular health plan regarding the health benefits for testing and treatment of COVID-19 provided by the plan, including the potential application of any deductible or cost sharing.

Read Notice 2020-15.

3

CDC, OSHA, and Coronavirus

CDC and OSHA Response to COVID-19. Official Posters, Guidance, Public Health Response. 

In response to the COVID-19 (coronavirus) outbreak, the U.S. Centers for Disease Control (CDC) issued:

  • Interim Guidance for Businesses and Employers to Plan and Respond to Coronavirus Disease, providing recommended workplace strategies for employers and guidance on how to decrease COVID-19 spread, how to respond to outbreaks, and additional resources; and
  • Public Health Response to the Coronavirus Disease 2019 Outbreak, providing a chronological timeline and summary of the virus, cases reported in the United States, and the agency’s public health response to the illness.

The CDC has also created the following posters for download:

Additionally, the U.S. Occupational Safety and Health Administration (OSHA) has created a COVID-19 website for workers and employers addressing the disease, providing guidance, and other resources for preventing exposure to and infection with the virus. We recommend that employers review the CDC and OSHA websites frequently, as the COVID-19 outbreak continues to develop.

4

HIPAA and COVID-19

The Office for Civil Rights (OCR) at the U.S. Department of Health and Human Services (HHS) released a bulletin to ensure awareness of the ways that patient information may be shared under the HIPAA Privacy Rule.

In February 2020, the Office for Civil Rights (OCR) at the U.S. Department of Health and Human Services (HHS) released a bulletin to ensure that Heath Insurance Portability and Accountability Act (HIPAA) covered entities, and their business associates, are aware of the ways that patient information may be shared under the HIPAA Privacy Rule in an outbreak of infectious disease or other emergency situation. The bulletin also reminds covered entities that the protections of the Privacy Rule are not set aside during an emergency and discusses the following HIPAA topics:

  • Sharing patient information
  • Treatment.
  • Public health activities.
  • Disclosures to family, friends, and others involved in an individual’s care and for notification.
  • Disclosures to prevent a serious and imminent threat.
  • Disclosure to the media or others not involved in the care of the patient/notification.
  • Minimum necessary (for most disclosures, a covered entity must make reasonable efforts to limit the information disclosed to that which is the “minimum necessary” to accomplish the purpose).
  • Safeguarding patient information.
  • HIPAA’s application to only covered entities and business associates.

The bulletin also provides links to the following resources:

HIPAA and Public Health, please visit: https://www.hhs.gov/hipaa/for-professionals/special-topics/public-health/index.html

General information on understanding the HIPAA Privacy Rule may be found at: https://www.hhs.gov/hipaa/for-professionals/privacy/index.html

Review the bulletin.

5

ERISA and Actual Knowledge

The Supreme Court further defines the intersection of “actual knowledge” and prudent investments in Intel Corporation Investment Policy Committee et al. v. Sulyma, under the Employee Retirement Income Security Act (ERISA) and within retirement plan manager duties.

On February 26, 2020, the Supreme Court of the United States (SCOTUS) unanimously determined the intersection of “actual knowledge” and prudent investments in Intel Corporation Investment Policy Committee et al. v. Sulyma, under the Employee Retirement Income Security Act (ERISA) and within retirement plan manager duties.

Under ERISA, plan fiduciaries’ (which include plan trustees, plan administrators, and members of a plan’s investment committee) primary responsibilities are to run the plan solely in the interest of participants and beneficiaries and for the exclusive purpose of providing benefits and paying plan expenses. Fiduciaries must also act prudently and must diversify the plan’s investments in order to minimize the risk of large losses. For beneficiaries, ERISA requires that they bring a lawsuit against a plan fiduciary for imprudent investments within six years; however, if the beneficiary has “actual knowledge” of the imprudent investments, then the suit must commence within three years of gaining that knowledge.

In this case, Christopher Sulyma was an Intel Corporation employee from 2010 to 2012 who sued the corporation in October 2015 claiming it violated ERISA by investing large portions of plan assets in imprudent investments, resulting in significant losses for plan participants. However, Sulyma filed his case more than three years after the administrators disclosed their investment decisions to him, so the administrators argued his claim was untimely. Although the claim was filed within six years of the alleged breaches, it was more than three years after petitioners had disclosed their investment decisions to Sulyma and thus he had actual knowledge and missed the deadline to file his suit; therefore, Intel argued there should be no suit (it was untimely).

The court held that Sulyma did not have actual knowledge of the imprudent investments triggering the three-year shortened timeframe to bring a lawsuit. The court detailed that although Sulyma visited the website that hosted the disclosures many times during his employment, he testified that he did not remember reviewing the relevant disclosures and that he was unaware of the allegedly imprudent investments while working at Intel. The court went on to clarify that, “[i]f a plaintiff is not aware of a fact, he does not have ‘actual knowledge’ of that fact however close at hand the fact might be . . .” and “As presently written [ERISA] requires more than evidence of disclosure alone. That all relevant information was disclosed to the plaintiff is no doubt relevant in judging whether he gained knowledge of that information. [But to meet ERISA’s] ‘actual knowledge’ requirement . . . the plaintiff must in fact have become aware of that information.” In other words, SCOTUS held that Sulyma could have known about the investments from the disclosures, but according to his testimony he did not and therefore did not file his lawsuit too late.

The decision took effect on February 26, 2020.

Read about ERISA fiduciary responsibilities and SCOTUS’s decision.

6

Electronic Reporting OSHA Form 300A

Those that meet any of the following criteria are not required to submit their information for the Occupational Safety and Health Administration (OSHA) Form 300A data.

The deadline for electronically reporting the Occupational Safety and Health Administration (OSHA) Form 300A data for calendar year 2019 was March 2, 2020. However, not all establishments need to submit their OSHA 300A Data. For example, those that meet any of the following criteria are not required to submit their information:

  • The establishment’s peak employment during the previous calendar year was 19 or fewer, regardless of the establishment’s industry.
  • The establishment’s industry is on this list, regardless of the size of the establishment.
  • The establishment had a peak employment of between 20 and 249 employees during the previous calendar year and the establishment’s industry is not on this list.

 

Note, these criteria apply at the establishment level, not to the company as a whole.

The collection of calendar year 2019 data and beyond will include the collection of each establishment’s Employer Identification Number (EIN). 

Read more about OSHA injury and illness recordkeeping and reporting requirements here.

Download all March 2020 Law Updates.

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Compliance can weigh down even the most experienced professionals. Our tryHRIS HR Advisors, one click compliance Handbook ,Compliance Database, HR Tools and Employee Training are ready to help navigate HR all year long. All for less than a latte a day.

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