Recent Updates in OSHA Reporting Requirements and Maximum Penalties, 0117 SCBJ, SC Lawyer, January 2017, #16

Author:Helen F. Hiser, J.
 
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Recent Updates in OSHA Reporting Requirements and Maximum Penalties

Vol. 28 Issue 4 Pg. 16

South Carolina BAR Journal

January, 2017

Helen F. Hiser, J.

The United States Congress enacted the Occupational Safety and Health Act in 1970 to improve workplace safety by reducing workplace injuries and illnesses. The Federal OSH Act (OSHA) applies to employers "engaged in a business affecting commerce who has employees, but does not include the United States … or any State or political subdivision of a State." 29 U.S.C. § 652(5). Approximately half of the states, including South Carolina, have developed State Plans that have been approved by OSHA. State Plans may provide more stringent standards, but must be at least as effective as OSHA.1 South Carolina's State Plan covers employers and employees in the private sector, as well as state and local government, with some limited exceptions.2 S.C. Code Ann. §§ 41-15-80, et seq. (SC OSHA). The SC OSHA is administered by the Office of Occupational Safety and Health within the South Carolina Department of Labor, Licensing and Regulation. SC OSHA generally adopts changes to federal OSHA law, but there is often a time lag between revisions to federal requirements and revisions to South Carolina Regulations.

South Carolina employers already should be familiar with the reporting change that has been in effect since January 1, 2015, requiring employers to report all work-related fatalities within eight hours and all work-related in-patient hospitalizations, amputations, or loss of an eye within 24 hours to SC OSHA.3 S.C. Code Reg. § 71-339. However, two recent revisions to OSHA will also impact South Carolina employers in the future: one concerns the maximum penalties SC OSHA can impose for violations of the SC OSHA; the other concerns electronic reporting, workplace safety incentives and stronger prohibitions to discourage retaliation against employees who report work-related injuries or illnesses.

First, as of August 1, 2016, OSHA's maximum penalties, which were last adjusted in 1990, increased by 78%.[4] Any citations is- sued by OSHA after August 1, 2016, will be subject to the new penalties if the related violation(s) occurred after November 2, 2015. The increases are as follows: • for Serious and Other-than-Serious violations, the maximum penalty will increase from $7,000 per violation to $12,471 per violation;

• for Failure to Abate, the maximum penalty will increase from $7,000 per day beyond the abatement date to $12,471 per day beyond the abatement date; and

• for Willful or Repeated violations, the maximum penalty will increase from $70,000 per violation to $124,709 per violation.

In the future, OSHA will adjust maximum penalties for inflation each year based on the Consumer Price Index. OSHA has announced that it will continue to provide penalty reductions based on the size of the employer as well as on other factors. States operating under their own State Plans are required to adopt maximum penalty levels that are at least as effective as OSHA's maximum penalty levels within six months.5

The second development concerns employer recording of workplace injuries and illnesses. OSHA requires most large employers to record work-related fatalities, injuries and illnesses on Forms 300, 300A and 301. OSHA contains two partial exemptions from this record-keeping requirement. First, an employer who had 10 or fewer employees at all times during the prior year does not have to maintain OSHA injury and illness records. However, if that employer increased its workforce to more than 10 employees at any point during the previous year, for example in order to meet seasonal demands, then that employer is subject to OSHA's record-keeping requirements.6 Second, some business establishments, listed in Appendix A to 29 C.F.R. § 1904 Sub-part B,7 are exempt from regular OSHA reporting requirements. The list includes establishments such as certain retail stores, financial institutions, educational institutions and other professional offices.8Regardless of any exemption from the record-keeping requirements, however, both categories of exempt employers are required to report to OSHA any workplace fatality, in-patient hospitalization, amputation or loss of...

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