Employees or independent contractors? DOL publishes final rule


Photo: kali9/iStockphoto

Washington — The Department of Labor has issued a final rule that targets “employee misclassification” of independent contractors.

Misclassifying employees as independent contractors is a serious issue that deprives workers of basic rights and protections,” acting Labor Secretary Julie Su said in a press release.

Critics of the rule, however, claim it would rob workers of the flexibility they want.

The final rule replaces the Wage and Hour Division’s analysis for determining if a worker is an employee or an independent contractor under the Fair Labor Standards Act of 1938. DOL contends the rule is “more consistent with judicial precedent and the act’s text and purpose,” as opposed to a 2021 final rule.

The new rule uses six factors to guide WHD’s analysis, including:

  • A worker’s opportunity for profit or loss.
  • A worker’s financial stake and the nature of any resources they’ve invested in the job.
  • The permanence of the employer-worker relationship.
  • The amount of control an employer exerts over a worker.
  • How essential the worker is to the business.

An additional factor is the worker’s skill and initiative. Su says the rule “will help protect workers, especially those facing the greatest risk of exploitation, by making sure they are classified properly and that they receive the wages they’ve earned.”

Sen. Bill Cassidy (R-LA), ranking member of the Senate Health, Education, Labor and Pensions Committee, said he intends to introduce a Congressional Review Act resolution to repeal the rule.

Cassidy notes in a press release that when Su was California’s labor secretary, the state implemented a similar measure.

“In California, A.B. 5 was so unpopular that 59% of California voters supported a measure to exempt ride-share drivers from the enforcement of the legislation. Additionally, the governor and state legislature had to pass multiple laws to exempt over 100 occupations.”

Rep. Virginia Foxx (R-NC), chair of the House Education and the Workforce Committee, and Rep. Kevin Kiley (R-CA), chair of the House Workforce Protections Subcommittee, also voiced their opposition in a joint statement Jan. 9.

“The modern economy is rapidly changing, and America’s workforce requires flexibility to thrive,” they write. “The DOL’s rule is the polar opposite of flexibility. The livelihoods of independent contractors, app-based workers, freelancers and self-employed individuals will be completely destroyed. Working Americans should have the flexibility to earn a living as they see fit.”

The rule is set to go into effect March 11.

McCraren Compliance offers many opportunities in safety training to help circumvent accidents. Please take a moment to visit our calendar of classes to see what we can do to help your safety measures from training to consulting.

Original article published by Safety+Health an NSC publication

Supporting worker mental health: New videos from OSHA


Photo: U.S. Department of Labor

Washington — Three new videos from OSHA are aimed at helping employers support their workers’ mental health.

Each short video is available with Spanish-language captioning:

“Mental health touches every aspect of our lives, from the way we make decisions, from how we interact with other people, and also our performance,” Joseph Xavier, senior director of safety for Associated Builders and Contractors, says in one of the videos.

Employees who are experiencing mental health issues may show up to work late or impaired, be distracted on the job, and/or isolate themselves from their co-workers. Regularly asking workers how they and their families are doing can build a one-on-one relationship and, in some cases, get to the root cause of workplace incidents.

Along with NIOSH’s Total Worker Health Program, mental health resources such as ABC’s Total Human Health Toolkit can guide employers and assist workers. The toolkit includes a human health assessment tool; resources to engage workers during Suicide Prevention Month (observed each September); and 12 different worker-focused webpages and printable documents that cover active listening tips, how to upgrade a work-from-home routine and understanding depression.

OSHA published the videos during Safe + Sound Week (Aug. 7-13), which emphasized the importance of addressing mental health as part of every workplace safety and health program.

McCraren Compliance offers a full range of safety and health training and consulting services. Plus we can help you incorporate well-being into your traditional systems in order to support the Total Worker Health of your workforce.

Call 888-758-4757, email info@mccrarencompliance.com or visit our website www.mccrarencompliance.com

Original article published by Safety+Health an NSC publication

OSHA’s proposal on electronic injury and illness data submission moves to final rule stage in latest regulatory agenda

Original article published by Safety+Health

Photo: Office of Information and Regulatory Affairs

Washington — OSHA’s regulation to change which workplaces are required to submit annual injury and illness data is at least one step closer to finalization, according to the Department of Labor’s tardy Fall 2022 regulatory agenda.

Published Jan. 4, the agenda – typically issued by the White House Office of Information and Regulatory Affairs twice a year – provides the status of and projected dates for all potential regulations listed in three stages: pre-rule, proposed rule and final rule. The Spring 2022 agenda was issued June 21.

Under OSHA’s current electronic injury and illness data submission rules, establishments with 250 or more employees and those with 20-plus employees in certain high-hazard industries must submit Form 300A – a yearly summary of injury and illnesses data.

The agency is proposing to require establishments with 100 or more employees in designated industries to submit Forms 300, 301 and 300A annually. Establishments in those same industries with 20 or more employees would need to submit only Form 300A under the proposal.

A final rule could appear as soon as March. OSHA’s forthcoming standard on COVID-19 in health care settings is among the agency’s other seven potential regulations listed in the final rule stage. That standard is under final review by OIRA.

Added to that list since June: Procedures for the Use of Administrative Subpoenas. An interim final rule could come as early as June.

“OSHA makes extensive use of subpoenas to gather evidence and interview witnesses during its investigations,” the agenda states. “This subpoena practice raises recurrent issues which lead to time-consuming disputes between the agency and employers. OSHA intends to adopt a regulation addressing the use of subpoenas during OSHA investigations to provide helpful clarity to the agency.

OSHA has one new proposed rule designed to “clarify” the process of designating a worker representative during an OSHA inspection or facility walkaround, “regardless of whether the representative is an employee of the employer, if in the judgment of the compliance safety and health officer such person is reasonably necessary to an effective and thorough physical inspection.”

A notice of proposed rulemaking could appear as soon as May.

Mine Safety and Health Administration

MSHA, meanwhile, has three new entries to the “semiannual” agenda, but all three are on the long-term actions list, meaning no work or updates are expected on these potential regulations for at least six months.

One concerns proposed safety requirements for mining around inactive or plugged oil or gas wells. Another seeks to change existing rules on radon exposure, and the third is on impoundment and dams.

“The general public would benefit from this rulemaking since failure of impoundments and dams is a significant hazard for the safety and health of miners and the surrounding communities,” MSHA says.

The agency’s planned retrospective look at its respirable coal mine dust rule and another regulation on non-permissible surveying equipment were moved from the active list to the long-term list.

McCraren Compliance offers many opportunities in safety training to help circumvent accidents. Please take a moment to visit our calendar of classes to see what we can do to help your safety measures from training to consulting.

Fall 2020 regulatory agenda: OSHA infectious diseases standard still ‘long-term action’

First published by Safety+Health an NSC publication.
Photo: OSHA

Washington — A potential infectious diseases standard from OSHA remains on the list of long-term actions in the Department of Labor’s regulatory agenda for Fall 2020 – the last under the Trump administration.

Released Nov. 9, the agenda – issued by the Office of Information and Regulatory Affairs twice a year – gives the status of and projected dates for all potential regulations listed in three stages: pre-rule, proposed rule and final rule. Listings marked “long term” aren’t expected to be worked on for at least six months.

That could change, however, if President-elect Joe Biden – after taking office Jan. 20 – directs OSHA to issue an emergency temporary standard on infectious diseases related to the COVID-19 pandemic. Such a directive would require the agency to then develop a permanent standard within six months.

Much of the rest of the agenda remains largely unchanged since the previous agenda was released July 1, although five OSHA regulations were finalized:

On July 10, MSHA announced no changes were made to the agency’s training requirements for refuge alternatives in underground coal mines, removing its only final rule from the agenda.

MSHA has one addition to the agenda: a proposed update and clarification to 30 CFR 50 – its rules on “notification, investigation, reports and records of accidents, injuries, employment and coal production in mines.”

The agency is seeking to revise the definition of “occupational injury/illness” to include “work-related.” It also seeks to review incidents that need to be reported within 15 minutes, noting in the agenda item that “the current list includes 12 types of accidents, and may be overly broad.” Also planned by MSHA is an accommodation of electronic reporting and recordkeeping, as well as a proposed attempt to “reduce recordkeeping and reporting burdens, to the extent feasible.”

OSHA’s standard on tree care operations has moved from pre-rule to proposed rule, and a notice of proposed rulemaking could be published in October. Another new item on the agenda is the proposed removal of 1910.217(g) from OSHA’s Mechanical Power Presses Standard, which requires the reporting of injuries resulting from mechanical power presses and the reporting criteria therein.

“There is a lack of evidence that OSHA uses this specific data,” which the agency states is already required under its Injury and Illness Recordkeeping Requirement Standard.

A new final rule listed would change the interpretation of the anti-retaliation provision of the Occupational Safety and Health Act of 1970, based on the Supreme Court’s opinion in University of Texas Southwestern Medical Center v. Nassar issued in 2013. In the case, the court held that defendants must prove in anti-retaliation cases that retaliation was the sole motivating factor for an adverse action such as a firing, instead of one of multiple motivating factors.

OSHA’s potential rule on workplace violence in health care and social assistance remains in the pre-rule stage, but a Small Business Advocacy Review panel is expected to convene in the near future, one of the next steps in the regulatory process.

McCraren Compliance sees the solution in our people. We are developing each person into a safety leader by recognizing and valuing them as humans and teaching them to do the same with their co-workers. We are creating workplaces where we all watch out for each other.

Please contact us today at 888-758-4757 to learn how we can provide mine safety training and consulting for your business.

DOL OIG releases FY 2021 audit plans for OSHA, MSHA

First published by Safety+Health an NSC publication.

Photo: oig.dol.gov

Washington — The Department of Labor Office of Inspector General intends to conduct an audit of the number and types of inspections OSHA is using to protect workers during the COVID-19 pandemic, as well as OSHA’s plans to address future pandemics, according to a fiscal year 2021 audit work plan released Nov. 2.

DOL OIG states that “OSHA has reduced its number of inspections and increased its number of non-formal complaint investigations.” OSHA was named in a lawsuit filed by meatpacking employees in July, the document adds.

The audit is among DOL OIG’s seven OSHA-focused discretionary audits – including four related to COVID-19 – planned for FY 2021, which ends Sept. 30. Discretionary audits are conducted with funds left over after mandatory audits – those required by law or regulation – have been completed.

OIG currently is looking into the protection of OSHA inspectors’ health during the pandemic. Other planned audits concern OSHA’s collaboration with other federal agencies that conduct onsite workplace safety and health inspections, and how OSHA uses complainant interviews during inspections.

“Inspectors are not required to interview complainants at any point during the inspection process, which could result in OSHA having little interaction with complainants and witnesses during complaint inspections,” OIG states. “This audit will focus on OSHA’s use of complainant and witness testimony during a complaint inspection to ensure the complaint or referral was addressed adequately.”

Another audit in progress is a review of OSHA’s silica standards, recently amended after 13 years of research and development. The other two planned audits will examine the Severe Violator Enforcement Program and OSHA’s “lookback reviews” on its own standards, which last occurred more than a decade ago. The latter audit will include examinations into OSHA’s nearly 50-year-old ammonium nitrate standard and 30-year-old Process Safety Management Standard (1910.119).

OIG is continuing to look into the Mine Safety and Health Administration’s modification or cancellation of more than 12,300 citations and orders from the beginning of 2013 through September 2019. Two other planned MSHA-focused audits concern the agency’s efforts to address dust sampling manipulation and mine rescue response plans.

McCraren Compliance assists employers in protecting their workers, starting with a comprehensive Work-site Analysis, Hazard Prevention, Controls, and Safety & Health Training.

Please contact us today at 888-758-4757 to learn how we can provide mine safety training and consulting for your business.