News and Analysis
From OMA Connections Partner Calfee: “In a 4-3 decision, the Ohio Supreme Court recently decided a case with potentially far-reaching implications for Ohio Workers’ Compensation Violation of a Specific Safety Requirement (VSSR) Law. State ex rel. Jackson Tube Serv., Inc. v. Indus. Comm., … held that the “impossibility defense” to violation of an OSHA standard could be imported into Ohio Workers’ Compensation Law as an affirmative defense to an alleged VSSR where an employer shows: (1) it would have been impossible to comply with the specific safety requirement or that compliance would have precluded performance of the work; and (2) that no alternate means of employee protection existed or were available. …”
Read more about this case from Calfee. 1/28/2019
This week the Ohio Bureau of Workers’ Compensation (BWC) proposed a 20% reduction in the average premium rate it charges private employers, which would be the largest rate cut in nearly 60 years if approved by the agency’s board of directors.
Fewer workplace injuries and falling estimates of future medical costs are driving the recommendation.
The board will vote the measure at its February 22 meeting.
If approved, the rate reduction would be effective July 1 and is projected to save private employers $244 million over premiums for fiscal year 2019.
Premiums paid to BWC not only cover health care and wages for injured workers, they support BWC’s Safety & Hygiene Division, which offers grants, training, consultations and other services to help employers improve workplace safety.
The proposed 20% rate cut represents an average statewide change. The actual premium paid by individual private employers depends on a number of factors, including the expected future claims costs in their industry, their company’s recent claims history and their participation in various BWC rebate programs. 1/24/2019
The U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) has issued a final rule that eliminates the requirement for establishments with 250 or more employees to electronically submit information from OSHA Form 300 (Log of Work-Related Injuries and Illnesses) and OSHA Form 301 (Injury and Illness Incident Report) to OSHA each year.
OSHA indicates it made this ruling to protect worker privacy.
The final rule does not alter an employer’s duty to maintain OSHA Forms 300 and 301 on-site, and OSHA will continue to obtain these forms as needed through inspections and enforcement actions.
Covered establishments are still required to electronically submit information from OSHA Form 300A (Summary of Work-Related Injuries and Illnesses). The deadline for submission is March 2, 2019. 1/24/2019
OSHA’s civil penalties amounts for violations of workplace safety and health standards will increase in 2019 to adjust for inflation. The adjusted maximum penalty amounts will take effect upon publication in the Federal Register.
The cost-of-living adjustment multiplier for 2019, based on the Consumer Price Index (CPI-U) for the month of October 2018, not seasonally adjusted, is 1.02522. In order to compute the 2019 annual adjustment, the Department of Labor multiplied the most recent penalty amount for each applicable penalty by the multiplier, 1.02522, and rounded to the nearest dollar.
New penalties for willful and repeat violations will be $132,598 per violation; serious, other-than-serious, and posting requirements are $13,260 per violation; and failure to abate violations are $13,260 per day beyond the abatement date. 1/18/2019
Occupational Safety and Health Administration (OSHA) recently published a set of Frequently Asked Questions (FAQs) to provide guidance to general industry employers on application of OSHA’s final rule regulating occupational exposure to respirable crystalline silica in general industry (the “silica rule”).
OSHA developed the FAQs in consultation with the National Association of Manufacturers (NAM) and the American Foundry Society. Since OSHA published its final silica rule in 2016, the NAM has continued to make the case to OSHA about the rule’s heavy burden on manufacturers and the need for reliable guidance to make the rule more workable. These long-awaited FAQs are a good step forward for the industry.
To read the FAQs, click here.
To read NAM’s brief summary of the FAQs, click here. 1/22/2019
The National Safety Council posted an online version of the Injury Facts reference book for safety statistics. The free resource features a section on workplace safety that includes work-related injury and fatality trends, and how to benchmark an organization’s injury and illness incidence rates with national averages. The information is organized into safety topics, such as falls, work-related fatigue, and forklifts. 1/24/2019
Governor Mike DeWine nominated Stephanie B. McCloud administrator/CEO of the Ohio Bureau of Workers’ Compensation (BWC) last week.
According to the BWC, “Administrator McCloud is a seasoned workers’ comp professional who cares passionately about BWC and its mission. She is a former BWC staff attorney and has a strong legal resumé, including as principal of a small business in Reynoldsburg.
“After beginning her career at BWC, she served as legal counsel to both former Governor George Voinovich and the Ohio Department of Transportation. She later joined the office of former Attorney General Jim Petro, first as senior deputy attorney general before advancing to chief counsel.
“McCloud is also a former Truro Township Trustee and active community leader. She is a graduate of Capital University Law School and Ohio University, where she earned a journalism degree and studied political science in graduate school.” 1/15/2019
Each February through April, employers with 11 or more employees must post a summary (OSHA 300A) of the injuries and illnesses recorded the previous year.
A company executive must certify that he or she has examined the OSHA 300 Log and that he or she reasonably believes, based on his or her knowledge of the process by which the information was recorded, that the annual summary is correct and complete.
The company executive who certifies the log must be one of the following persons: an owner of the company (only if the company is a sole proprietorship or partnership); an officer of the corporation; the highest ranking company official working at the establishment; or the immediate supervisor of the highest ranking company official working at the establishment.
OSHA records must be maintained at the worksite for at least five years.
Also, if requested, copies of the records must be provided to current and former employees, or their representatives.
March 2, 2019, is the deadline for electronically reporting your OSHA form 300A data for calendar year 2018. Collection began January 2, 2019.
Special note for establishments with 250 or more employees: Under the current recordkeeping rule, the initial deadline for electronic submission of information from OSHA Forms 300 and 301 by covered establishments with 250 or more employees was July 1, 2018. However, OSHA has published a Notice of Proposed Rulemaking (NPRM) to amend its recordkeeping regulation to remove the requirement to electronically submit to OSHA information from the OSHA Form 300 (Log of Work-Related Injuries and Illnesses) and OSHA Form 301 (Injury and Illness Incident Report) for establishments with 250 or more employees which are required to routinely keep injury and illness records. OSHA will not enforce this deadline for these two forms without further notice while this rulemaking is underway.
More here. 1/14/2019
BWC’s next monthly employer webinar is Thursday, Jan. 24 at 11:30 a.m. Topics will include the July 1, 2019 premium adjustment factors, My Policy page improvements, enrolling in required electronic notifications for your policy, important account deadlines and program reminders and the monthly safety tip.