Regulatory Update: Electronic Reporting Violations and AOBRD Compliance Extension

by Melanie Baravik
March 27, 2018

In construction, there are countless rules and regulations to stay on top of and changes can sometimes fly under the radar. In recent weeks, OSHA released a memo detailing penalties for businesses that haven’t electronically submitted Form 300A. Also, a U.S. appeals court ruled that when it comes to look-back periods, OSHA doesn’t have to follow its own policy because that policy has no legal precedent. Here’s more detail about what’s happening on the regulatory front in construction.

Electronic filing of OSHA Form 300A

OSHA required some employers to electronically file Form 300A from their 2016 illness and injury reports by December 31, 2017. However, many have not yet done so. An estimated 350,000 employers needed to submit the form, but OSHA says fewer than half filed on time. Surprisingly however, around 60,000 businesses have submitted reports that did not need to. Businesses that need to submit Form 300A electronically fit this criteria:

  • 250 or more employees and already required to keep illness and injury reports.
  • 20-249 employees in certain industries.

Establishments need to submit form 300A for 2017 by July 1 of this year, and beginning in 2019, annually by March 2. This year, OSHA is issuing other than serious violations for noncompliant businesses and some of those will have penalties attached. If an establishment failed to submit the form for 2016 on time but provides it immediately upon inspection, or if it has already submitted data for 2017, no penalty will be assessed. But if an employer doesn’t provide the form, OSHA can assess a penalty of up to $12,934.

AOBRD compliance extended

Automatic On Board Recording Devices (AOBRDs) are currently accepted as ELD-compliant. Initially, the FMCSA ruled that AOBRDs installed after December 18, 2017 would not be considered compliant devices. But recently, the agency relaxed its stance on AOBRDs — it will allow carriers to keep using AOBRD software on ELD-compliant devices in any new vehicles carriers add to their fleets until December 16, 2019.

If you weren’t already using AOBRD software before Phase 2’s effective date, you’ll need an ELD. But if your fleet uses AOBRDs and you’re not ready to switch over to ELDs entirely, you can keep using AOBRD software on ELD-compliant devices in any new fleet vehicles. Any AOBRDs installed before last December have been “grandfathered” in and are compliant. But be prepared: once Phase 3’s effective date rolls around, using AOBRDs and AOBRD software can put you out of service.

OSHA look back period

Prior to 2015, OSHA looked back over a period of three years to establish repeat violations when issuing citations. In 2015, they increased that period to five years. In response, a construction company looked to the courts to determine if the three- or five-year period applied to a repeat violation they received in February 2015. OSHA looked back further than three years to establish the repeat violation, and the company called the look back extension “arbitrary.”

Triumph Construction Corporation alleged that the citation OSHA referenced occurred outside of the three-year look back period printed in the version of the OSHA Field Operations Manual used at the time. The five-year look back period wasn’t printed until the 2016 version of that manual, and Triumph stated that OSHA was violating its own policy by issuing the repeat citation. But as it turns out, it really doesn’t matter how long ago the violation occurred. The U.S. Court of Appeals for the Second Circuit ruled that since there’s no “statutory” look back period — meaning none established by any law —  in OSHA policy, the agency isn’t actually bound by that policy. It can change whenever OSHA decides and the agency can disregard its own written policy at its discretion.

Though OSHA will generally follow its policy, it’s important to be aware of the outcome of Triumph Construction Corp. v. Secretary of Labor. Attorneys suggest contesting citations your business receives if you have a “good faith defense” against it, even if you might usually be inclined to pay the penalty and avoid legal fees. If the judge rules in your favor, that citation won’t be on your record and can’t be used to establish repeat violations later on. Repeat citations are considered serious violations and carry maximum penalties that are often hundreds of thousands of dollars more than the penalties for other citations. Keeping this case in mind, make OSHA safety compliance a priority to avoid both citations and legal fees fighting them.

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