October Updates

October 10th, 2016

OSHA’s Requirements

Effective on January 1, 2017 OSHA requires certain employers to electronically submit both injury and illness data. Although employers are already obligated to collect this information, the new rule requires this information be sent to OSHA for public posting on a new public OSHA website that is scheduled to go live in February 2017.

OSHA hopes that the new reporting requirements will “nudge” employers toward making their workplace safer, by publicly posting injury and illness data on the OSHA website. Employers will be publicly identified on the website, but information about employees will not be posted.

Under the new rule, establishments with 250 or more employees must electronically submit injury and illness information to OSHA via OSHA Forms 300 (Log of Work-Related Injuries and Illnesses), 300A (Summary of Work-Related Injuries and Illnesses), and 301 (Injury and Illness Incident Report). Establishments with 20­–249 employees in industries that are considered “hazardous” must electronically submit information from Form 300A to the new website. These employers must pay attention to which industries are included under the new requirements (i.e., construction, taxi service, vending machine operators, nursing homes, grocery stores, and agriculture. The full list of “hazardous” industries is available here: https://www.osha.gov/recordkeeping/NAICScodesforelectronicsubmission.pdf).

Minnesota operates its own job safety and health program (MNOSHA) which means Minnesota must adopt requirements that are substantially identical to the new OSHA rule by November 12, 2016. As of today, MNOSHA has not released information on new state requirements. Keep a look out for more information regarding Minnesota’s plan moving forward.

In addition to the new reporting requirements, employers must establish a procedure for employees to report work-related injuries and illnesses promptly and accurately. The new rule prohibits reporting procedures that may deter or discourage a reasonable employee from accurately reporting, and also prohibits any retaliation for reporting an injury or illness. As a result, blanket post-accident drug testing and safety incentive programs may face scrutiny as OSHA claims these types of programs may deter injury reporting. OSHA noted that the new rule does not prohibit post-accident drug testing of employees, but employers are prohibited “from using drug testing, or the threat of drug testing, as a form of retaliation against employees who report injuries or illnesses.” Similarly, OSHA notes that safety incentive programs may deter employees from reporting accidents or injuries because employees would rather get the incentive or reward than report an injury or accident. Employers are waiting for additional guidance, and, in the meantime, blanket post-accident drug testing policies and safety incentive programs should be reviewed and employers should be prepared to revise their policies.

New Posting Requirements

Federal and state laws require employers to post certain posters in conspicuous areas where employees (and, in some cases, applicants) can see them. When laws and regulations change, new, revised posters must be displayed. This year the new poster revisions are:

Amendments to Minneapolis Sick Leave Ordinance

In late September, Minneapolis passed amendments to the new Minneapolis Sick and Safe Leave Ordinance, effective July 1, 2017. The revisions clarify that the regular rate of pay for employees excludes tips, commissions, expense reimbursements, bonuses, profit sharing payments, and retirement contributions. The revisions provide that sick leave may accrue in one-hour increments, employers can front-load accrual in specific circumstances, and recording accrual time can be done consistent with the practices of the employer or the industry standard (but not less than monthly). Additionally, the city clarified that records should include hours worked for non-exempt employees, leave available, and leave used. The amendments also clarified that no additional paid time off need be given if an employer’s current paid time off policy is sufficient to meet the accrual and use requirements under the ordinance.

Paid Sick Leave for Federal Contractors

The Department of Labor published a final rule on September 30, 2016, finalizing the requirements for paid sick leave for federal contractors. This rule applies to all new federal government contracts entered into on or after January 1, 2017. A government contractor who is covered must pay sick leave to all employees who are working on the covered contract or sub-contract.

The new rule requires that covered employees receive up to seven days of paid sick leave annually. One hour of sick leave is accrued for every 30 hours worked. Any unused paid sick leave time must be carried over from year to year. However, employers may limit the amount of paid sick leave an employee is permitted to accrue to 56 hours in each year, and also limit the amount of paid sick leave an employee is permitted to have available for use at any point to 56 hours. This limits the amount of leave that will be carried over each year.

Employees covered under this rule can take paid sick leave to take care of the employee’s own illness or health care needs, to care for a family member, intimate partner, or “any other individual related by blood or affinity whose close association with the employee is the equivalent of a family relationship” who requires health care, or for reasons relating to domestic or sexual violence. Request to use leave can be made orally or in writing, at least seven days in advance when foreseeable. This rule does not require contractors with existing paid leave policies to provide additional paid leave as long as the leave provided has the same rights required under the act. Accrued but unused sick leave does not have to be paid out upon termination.

Employers with collective bargaining agreements (CBAs) that were ratified before September 30, 2016 do not need to comply with all parts of the new rule until the CBA terminates or January 1, 2020 (whichever is earlier), as long as employees are provided at least 56 hours of paid time off. Employers should review their current CBAs and paid time off policies to determine what steps, if any, need to be taken to comply with the new rule.

If you have any questions about anything in this article, please contact Caitlin Andersen at 952-921-4619 or candersen@seatonlaw.com, or any of the other Peters, Revnew, Kappenman & Anderson, P.A. attorneys.

Special thanks to Law Clerk Dana Swanson for her contributions to this article.

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