This document provides an overview of key OSHA regulations and developments that employers need to be aware of in 2019. It discusses OSHA basics, injury reporting requirements, managing OSHA inspections, employee interviews, contesting citations, changes under the Trump administration regarding recordkeeping, walkaround rights, drug testing, and electronic recordkeeping. It also covers litigation strategies, recent OSHA litigation outcomes, and the most cited OSHA standards from 2018.

1. OSHA In 2019:
What Employers Need to Know
March 26, 2019

2. Our Presenters
2
Kerry Mohan, Of Counsel
kerry.mohan@quarles.com
608.283.2648
Fred Gants, Partner
fred.gants@quarles.com
608.283.2618

3. Overview
• OSHA Basics
• Injury Reporting Requirements
• Managing an OSHA Inspection
• Employee Interviews
• How to Address and Defend OSHA Citations
• Trump Administrative Changes
• Potential Criminal Liability
• Developments in 2019
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4. OSHA Basics
• Enacted in 1970, the Occupational Safety and Health Act ("OSH Act") was
created to ensure a safe working environment for all employees.
• The Occupational Safety and Health Administration ("OSHA") is the
administrative arm of the OSH Act. OSHA is tasked with:
• Developing and issuing new safety and health regulations;
• Providing guidance and interpretations for the regulations;
• Conducting workplace investigations; and
• Issuing citations for alleged violations of its health and safety regulations.
• OSHA is comprised of Federal OSHA and state plans.
• 21 state plans applicable to the private sector
• Cal-OSHA is the most aggressive of the state plans
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5. OSHA Regulations
• OSHA has issued regulations in the following areas:
• General Industry
• Construction
• Maritime
• Agriculture
• Recordkeeping
• In addition to the regulations, OSHA has a "General Duty" clause, Section
5(a)(1), that requires employers to provide employees a place of
employment that is “free from recognized hazards that are causing or are
likely to cause death or serious physical harm to [their] employees.”
• Must be designated as a "Serious" classification
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6. OSHA Citations and Penalties
• In the event OSHA finds violations of its regulations during an
inspection, it can issue the following citations and maximum
penalties:
• Other-Than-Serious: $13,260
• Serious: $13,260
• Repeat: $132,589
• Willful: $132,589
• Failure to Abate: $13,260 per day
• These 2019 numbers are adjusted for inflation in January of every
year.
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7. 2018 Most Cited Standards
• Between 10/1/2017 and 9/30/2018, OSHA's Top 10 Cited Standards were:
1. Fall protection, Construction (1926.501) – 7,720 violations
2. Hazard Communication (1910.1200) – 4,552 violations
3. Scaffolds (1926.451) – 3,336 violations
4. Respiratory Protection (1910.134 ) – 3,118 violations
5. Lockout/Tagout (1910.147) – 2,944 violations
6. Ladders (1926.1053) – 2,812 violations
7. Powered Industrial Trucks (1910.178) – 2,294 violations
8. Fall Protection, Training (1926.503) – 1,982 violations
9. Machine Guarding (1926.212) – 1,972 violations
10. Personal Protective Equipment, Eye and Face Protection (1926.102) – 1,536
violations
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8. Injury Reporting Requirements
• All employers must notify OSHA when an employee is killed on the job or suffers a
work-related hospitalization, amputation, or loss of an eye.
• Fatality must be reported within 8 hours of the employer becoming aware of the
fatality.
• Only must be reported if the fatality occurs within 30 days of the work-related incident.
• In-patient hospitalization, amputation, or eye loss must be reported within 24 hours of
becoming aware.
• Only must be reported if this event occurs within 24 hours of the work-related
incident.
• Only in-patient hospitalizations that involve care or treatment must be reported. An
in-patient hospitalization that involves only observation or diagnostic testing need
not be reported.
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9. Injury Reporting Requirements (cont.)
•How to make the report:
• Call the nearest OSHA Area office.
• If the OSHA office is closed, call OSHA's 24-hour hotline at 1-
800-321-6742 (OSHA).
• Supply:
• Business name
• Name(s) of affected employee(s)
• Location, time, and brief description of incident
• Contact person and phone number
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10. Inspections Under the Trump Administration
• OSHA inspections during the Trump era have largely remained the same because they
are compliance officer specific.
• Some compliance officers are more aggressive than others.
• But, there has been some attrition within OSHA, with it currently having its lowest-ever
number of inspectors:
• 2010 – over 1,000
• 2016 – 952
• 2018 – 875
• Consequently, OSHA's investigative focus has trended less toward complicated cases
(e.g., General Duty Clause) and more toward standard cases.
• Concurrently, OSHA is more likely to conduct an investigation following a catastrophic
event or fatality.
10

11. Managing an OSHA Inspection
•Set the Scene:
•You get a call from a frantic GM saying that OSHA just
showed up, showed her badge, and is demanding to
immediately inspect the entire facility, take video, and
interview employees.
•What do you do?
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12. Managing an OSHA Inspection (cont.)
 When does an OSHA inspection occur?
• Imminent danger / plain sight
• Following catastrophic event or reportable injury
• Employee complaint
• Referral
• Programmatic / Targeted
• Follow-up
 The type of inspection is important, because it sets the inspection's scope.
 Can you refuse OSHA access to the worksite?
– OSHA can obtain a warrant to enter the worksite
 Can you refuse to provide OSHA documents?
– OSHA can obtain subpoenas to obtain documents or interviews
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13. Managing an OSHA Inspection (cont.)
 How to control an OSHA inspection:
– Obtain a copy of the complaint / Limit inspection to the complaint
– Have a point person to:
• Greet OSHA inspector / can make them wait several hours
• Be the funnel for information/interview requests and passing of information
– Control where the investigator goes
– Limit videos / Prohibit audio recording
– Shadow the inspector
• Take the same photos as the inspector
• Note who they speak to and about what
– Push back on unreasonable requests
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14. Employee Interviews
 OSHA has the right to interview employees and management
– If you refuse, OSHA can obtain an administrative subpoena to conduct a more formal interview
 Employee Interviews
– Employees can “technically” choose who they want as their representative
 Management Interviews
– Counsel can be present
– Key Issue - Clearly agree as to who is management or supervisor
 Not required to be recorded
 Not required to sign any statement
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15. Trump Administration Rollbacks
•Recordkeeping Statute of Limitations
•Rescission of Walkaround Rights Interpretation
•Drug Testing and Incentive Programs
•Electronic Recordkeeping
15

16. Recordkeeping Statute of Limitations
• Prior to 2012, OSHA’s position was that an employer’s duty to record an injury or illness
continued for the full five-year record-retention period.
– However, in 2012, the D.C. Circuit ruled that OSHA's practice violated the OSH Act's six
month statute of limitations. AKM LLC v. Secretary of Labor, 675 F.3d 752 (D.C. Cir. 2012)
("Volks"). As a result, OSHA has six months to issue a recordkeeping citation from the date
of the actual violation, like it does with any other OSHA citation.
 In December 2016, OSHA announced a new final rule claiming to “clarify” an employer’s
“continuing obligation to make and maintain an accurate record of each recordable injury and
illness.”
– The final rule became effective January 18, 2017.
 In March 2017, Congress passed a resolution disapproving OSHA’s actions.
 On May 3, 2017, OSHA officially rescinded the rule.
 Thus, the six month statute of limitations remains in effect.
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17. Rescission of Walkaround Rights Interpretation
 On February 21, 2013, OSHA issued a standard interpretation which found that
workers without a collective bargaining agreement could designate a person affiliated
with a union or community organization to act on their behalf as their “walkaround
representative” during an OSHA inspection.
 In September 2016, the National Federation of Independent Business (NFIB) sued
OSHA over the interpretation.
 In February 2017, the Federal Court sided with NFIB, finding that OSHA’s standard
interpretation was a legislative rule subject to notice and comment rulemaking, not
“interpretive guidance” as OSHA claimed, and, thus, should have gone through the
formal rulemaking process.
 On April 25, 2017, OSHA formally withdrew the February 21, 2013 standard
interpretation.
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18. Drug Testing and Incentive Programs
• On May 12, 2016, OSHA issued regulations prohibiting employers from retaliating against
employees for reporting work-related injuries or illnesses.
• In the final rule's preamble and interpretive documents, OSHA discussed how employer
safety incentive programs and post-incident drug testing policies could violate these
regulations.
• Post-incident drug testing was not prohibited per se, but it was prohibited when drug use
could not have contributed to the injury or illness or if the test is used in a retaliatory way.
• Safety incentive programs were also not prohibited, but employers could not use incentive
programs in a way that penalizes employees for reporting work-related injuries or illnesses.
• E.g., a $100 bonus if there is no recordable injury or illness for 100 straight days, but no
bonus if there has been a recordable injury.
18

19. Drug Testing and Incentive Programs (cont.)
• On October 11, 2018, OSHA issued a "Clarification" of its position on safety incentive programs
and post-incident drug testing.
• Recognizing that such programs are intended to promote workplace safety and health,
OSHA clarified that such programs are lawful so long as the employer does not take action
for penalizing an employee for reporting a work-related injury or illness.
• For drug testing, OSHA states that most instances of workplace drug testing are permissible,
including post-incident testing "to evaluate the root cause of a workplace incident that harmed
or could have harmed employees." BUT:
• The employer should test all employees whose conduct could have contributed to the
incident – not just the employees who reported injuries; and
• The timing of the impairment should be considered.
19

20. Drug Testing and Incentive Programs (cont.)
• Regarding incentive programs, OSHA stated that a "rate-based" system that rewards employees with a
prize or bonus at the end of an injury-free month or evaluates managers based on their work unit’s lack
of injuries is permissible "as long as [it is] not implemented in a manner that discourages reporting." To
have this program, an employer has implemented adequate precautions to ensure that employees feel
free to report an injury or illness.
• But, what are adequate precautions?
• A statement that employees are encouraged to report and will not face retaliation for reporting may
not, by itself, be adequate.
• But, an employer can avoid "inadvertent deterrent effects" of a rate-based program by taking
actions to counterbalance the potential deterrent effects:
• an incentive program that rewards employees for identifying unsafe conditions in the
workplace;
• a training program for all employees to reinforce reporting rights and responsibilities and
emphasizes the employer’s non-retaliation policy; and
• a mechanism for accurately evaluating employees’ willingness to
report injuries and illnesses.
20

21. Electronic Recordkeeping
• In May of 2016, OSHA issued a final rule requiring:
• Establishments with 250 or more employees to electronically submit their OSHA 300, 301, and 300A
injury and illness logs on an annual basis; and
• Other establishments in high-risk industries to electronically submit their OSHA 300A injury and
illness logs (the "Electronic Recordkeeping Rule").
• OSHA intended to:
• Post the data online
• Use the data to target workplaces for inspection and enforcement
• On January 25, 2019, OSHA published its new final rule removing the requirement that
establishments with 250 or more employers electronically submit their OSHA 300 and
301 forms to OSHA each year. Instead, these establishments, along with those in high-
risk industries, need only electronically submit their OSHA 300A form.
• They must be submitted by March 2nd of every year.
21

22. Electronic Recordkeeping (cont.)
• But, we will see if the new final rule will be upheld.
• On January 25, 2019, a coalition of public interest and labor groups filed a lawsuit
challenging OSHA's decision to remove the requirement that establishments with 250
or more employees annually submit OSHA 300 and 301 logs.
• On March 6, 2019, six states (New Jersey, Illinois, Maryland, Massachusetts, Minnesota,
and New York) filed a lawsuit alleging that OSHA had an "illegal and unjustified attempt
to rollback its requirements for the public reporting of workplace injuries and
illnesses—information that allows states to better design enforcement, outreach, and
training programs to improve workplace safety, and that enables employees to protect
themselves from risks at work.”
• We will see what happens next!
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23. Set the Scene
Five months ago, the Company reported an incident to
OSHA. OSHA conducted an investigation, which appeared
to be painless. The compliance officer was a "nice guy" and
he was easy to get along with. Today, the Company
received notice that it is receiving 5 citations, including two
willful citations, and a penalty of $200,000.
What can the Company do?
23

24. When the Citations Come In
 OSHA has a six month statute of limitations to issue the citations
 Once received, the employer has 15 “working days” to request an “informal
conference” with OSHA and/or contest the citations
 Failure to contest within that 15 working days waives all defenses and the
citations become final
 File a “Notice of Contest” with the OSHA Area Office.
– Simple letter contesting all “citations and items,” “abatement deadlines,” and
“penalties.”
– Notice of Contest deadlines may be different under State Plans.
24

25. Why is it Important to Contest an OSHA Citation?
•Classification of Violations: Willful, Repeat, Serious, or
Other-Than-Serious
•Dollars
•Abatement
•Competitive Disadvantage
•Government Contracts / Subcontracts
•Insurance Coverage
•Reputation
25

26. Litigating an OSHA Citation
 The OSHA Review Commission (“OSHRC”) is an independent administrative
agency.
 Overseen by Administrative Law Judges
 U.S. Office of the Solicitor represents OSHA
 Federal Rules of Evidence and Civil Procedure generally control:
 Written Discovery
 Depositions
 Motion Practice
 Experts
 Often will result in settlement
 Ensure you have a non-admission clause in the agreement
26

27. Litigating an OSHA Citation (cont.)
 Ultimately results in a bench trial before one of the ALJs
– Usually last one to three days, but can be much longer
– After the hearing, each party submits post-hearing briefs
 After receiving the ALJ’s written decision, the parties then appeal to the three-
member Review Commission
 Parties can then appeal to either the home Circuit Court of Appeals or the D.C.
Circuit Court of Appeals
27

28. OSHA Litigation Issues
•Under the Obama Administration, OSHA aggressively
pursued litigation in an attempt to create legal
requirements through case law.
•This was particularly seen through the use of the General
Duty Clause in cases involving:
• Heat illness
• Workplace violence
• Ergonomics
• Permissible exposure levels
28

29. OSHA Litigation Issues (cont.)
• Although the threat of litigation was often enough to force employers to settle, OSHA
has recently suffered a string of litigation defeats:
• Heat Illness
• Aldridge Electric (ALJ Decision) – a case we successfully defended
• A.H. Sturgill (OSHRC 2/28/2019 decision)
• Repeat classification
• Angelica Textile Services (OSHRC) – holding OSHA to a higher standard to show
"substantial similarity" for a repeat violation.
• Scope of inspections
• Mar-Jac Poultry (11th Circuit) – limiting OSHA's ability to expand its inspections beyond
the initial reason for conducting the inspection.
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30. OSHA Litigation Issues (cont.)
•But, OSHA has also had some recent success:
• Multi-Employer Worksite Doctrine
• Hensel Phelps (5th Circuit) – OSHA can cite a controlling employer at
a worksite involving numerous employers.
• Repeat Citations
• Triumph Construction (2nd Circuit) – Holding that there is no time
limitation on how far back OSHA can look for a repeat violation
• Workplace Violence
• Integra Health Management, Inc. (OSHRC 3/4/19) – Affirming
citation against employer based on workplace violence.
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31. Potential Criminal Penalties
• Under OSH Act, criminal penalties can be imposed against employers and individuals
when there is a fatality that was caused by a willful violation. Penalties are:
• Misdemeanor with 6 months imprisonment;
• $500,000 penalty for employer, and
• $250,000 penalty for individual.
• Giving advance notice of an inspection
• $1,000 penalty and 6 months imprisonment
• Knowingly providing false information or
documents during inspection
• $10,000 penalty and 6 months imprisonment
31

32. Use of Criminal Penalties (cont.)
• OSHA is no longer pleased with these criminal penalties because they are misdemeanors.
• Since December 17, 2015, OSHA and the DOJ have renewed their cooperation to push for
felonies for:
– Lying during an OSHA inspection
– Making false statements in government documents
– Obstructing Justice
– Tampering with witnesses
• Also working with states to issue manslaughter and other charges.
32

33. Use of Criminal Penalties (cont.)
• Recent examples of criminal penalties include:
• RSR Home Construction – February 2019 Federal criminal complaint against a construction company's owner who lied
during a deposition about whether he directed employees to perform work on a roof (that eventually resulted in serious
injuries). If convicted of perjury charges, he faces up to 5 years prison and a $250,000 fine.
• Atlantic Drain – Two employees died following a trench collapse. In 2017, Massachusetts filed charges against the company
and its owner alleging: (i) manslaughter (2 counts); (ii) misleading investigator; and (iii) concealing the record. The owner
faces up to 20 years in prison for each manslaughter count.
• Harco Construction – One employee died following a Manhattan trench collapse. New York brought criminal charges
alleging: (i) manslaughter; (ii) criminally negligence homicide; and (iii) reckless endangerment. In June 2016, the Company
was convicted of the charges. In lieu of jail and fines, the Company was required to air bilingual PSA print and TV ads.
• Alki Construction – After the death due to a trench collapse, Washington state filed second-degree manslaughter charges
against the owner and company.
• Solus Industrial Innovations – After a water heater explosion killed two employees, in 2018, the California Orange County
DA filed criminal charges against the plant manager and maintenance supervisor for felony violations of the California Labor
Code.
• Massey Energy Co. – CEO sentenced to one year in prison following a mine explosion that killed 29 men.
33

34. Developments for 2019
• During a recent conference, OSHA identified three areas it will remain focused on:
1. Trenching/excavation hazards
2. Fall protection
3. Workplace violence
• Crane operator certification requirements
1. On November 7, 2018, OSHA issued a final rule requiring employers to train operators to
perform assigned crane activities, evaluate them, and document successful completion of the
evaluations.
2. Employers who evaluated operators before December 9, 2018, do not have to conduct
evaluations again, but still must document when those evaluations were completed.
3. The final rule, except for the evaluation and documentation requirements, became effective on
December 9, 2018. The evaluation and documentation requirements became effective on
February 7, 2019.
34

35. Developments for 2019
•Silica Dust
1. Respirable crystalline silica is created when cutting, sewing, grinding,
drilling, and crushing stone, rock, concrete, brick, block, and mortar.
2. Employees who inhale silica particles have increased risk of developing
serious diseases, including: silicosis, an incurable lung disease that can
lead to disability and death; lung cancer: chronic destructive
pulmonary disease (COPD); and kidney disease. OSHA has issued two
standards: one for construction, and the other for general industry and
maritime.
3. About 2.3 million employees are exposed to silica at work.
35

36. Developments for 2019
•Beryllium
1. OSHA has issued a final rule to prevent chronic beryllium disease and lung cancer
by limiting employees' exposure to beryllium and its compounds.
2. On December 12, 2018, OSHA began enforcing the general industry standard's with
provisions for work areas, written exposure control plan, personal protective
clothing and equipment, hygiene, housekeeping, hazard communication, and
recordkeeping.
3. On March 11, 2019, OSHA began enforcing the general industry requirements for
change rooms and showers.
4. On March 10, 2020, OSHA will begin enforcing the general industry or
requirements for engineering controls.
36

37. Developments for 2019
•Forklifts
1. On March 8, 2019, OSHA stated that it wants to update its rule for forklifts used to
move materials act factories, warehouses, and construction sites.
2. Employers operating forklifts would no longer be expected to follow safety
guidance written 50 years ago.
3. In fiscal year 2017, OSHA issued citations for 2,162 violations totaling penalties of
$5.3 million.
4. While the industry – developed consensus standard has been updated several
times by the Industrial Truck Standards Development Foundation, most recently in
2018, OSHA's rule hasn't changed.
37

38. © 2019 Quarles & Brady LLP - This document provides information of a general nature. None of the information contained
herein is intended as legal advice or opinion relative to specific matters, facts, situations or issues. Additional facts and
information or future developments may affect the subjects addressed in this document. You should consult with a lawyer about
your particular circumstances before acting on any of this information because it may not be applicable to you or your situation.
Questions?
Fred Gants, Partner
fred.gants@quarles.com
608.283.2618
38
Kerry Mohan, Of Counsel
kerry.mohan@quarles.com
608.283.2648

39. Thank you!
39
Kerry Mohan, Of Counsel
kerry.mohan@quarles.com
608.283.2648
Fred Gants, Partner
fred.gants@quarles.com
608.283.2618