In 2016, the Occupational Safety and Health Administration (OSHA) issued a final rule that requires certain establishments to report information from their injury and illness records to OSHA electronically. Under the rule, the first electronic reports were due through the Injury Tracking Application (ITA) by Dec. 31, 2017. However, not every affected establishment submitted these electronic reports, and on Feb. 21, 2018, OSHA issued guidance to its field inspectors on how to enforce compliance with this requirement.
OSHA was expecting about 350,000 electronic reports by Dec. 31, 2017. However, a report submitted to Bloomberg shows that only a little over 153,600 reports were actually submitted. This represents roughly only a 44 percent compliance rate, assuming that OSHA’s expectation was an accurate representation of establishments that were actually affected by the final rule.
Establishments that failed to submit their reports are subject to an “other-than-serious” violation. As of 2018, a single other-than-serious violation can be up to $12,934. However, OSHA’s enforcement instructions also authorize field officers to perform full recordkeeping audits for noncomplying establishments. Additional auditing can lead to more citations for systematic recordkeeping issues.
However, OSHA has also instructed their field officers to mitigate enforcement decisions for establishments that can produce evidence that they tried to comply with the electronic requirement, but were not able to do so because of technical difficulties.
The table below shows the conditions establishments must meet in order to avoid citations for failing to submit electronic reports on their OSHA 300A forms.
|Exemption||Requirements||Outcome if criteria is met|
|Honest attempt to comply with rule, but encountered technical difficulties||
|Failing to submit, but immediate abatement (correction of problem)||
|Failing to submit 2016 data, but establishment has already submitted 2017 data through ITA||
Employers should determine whether any of their affected establishments:
- Have submitted their 2016 data as required;
- Can provide a paper copy of their 2016 data upon request;
- Documented any failures to submit electronic reports as required; and
- Are ready to or have already submitted their 2017 data through the ITA.
The Importance of Plan Document Review
A recent Supreme Court ruling in CNH Industrial N.V. v. Reese exemplifies why carefully reviewing plan documents—like a collective bargaining agreement (CBA) or summary plan document (SPD)—is so important. Employees claimed that the language of the agreement suggested benefits were vested for life, but the CBA itself listed an expiration date. The court conceded that if the agreement used ambiguous language like “lifetime” or “for life,” that would change the situation. However, including an expiration date and avoiding such language makes it clear that the benefits are limited. With these case details in mind, carefully review your plan documents, like your SPD or any other documents that discuss health benefits. Make sure the language you use is not ambiguous and clearly lays out your intentions.
Also, this a good reminder of the general importance of having updated Plan Documents/SPDs/wraps. Under ERISA, employer-sponsored welfare benefit plans, such as group health plans, must be described in a written plan document. In addition, employers must explain the plans’ terms to participants by providing them with a summary plan description (SPD). The insurance certificate or benefit booklet provided by an insurance carrier or other third party for a welfare benefit plan typically does not satisfy ERISA’s content requirements for plan documents and SPDs. However, employers may use wrap documents in conjunction with the insurance certificate or benefit booklet in order to satisfy ERISA’s requirements. This document is called a “wrap document” because it essentially wraps around the insurance certificate or benefit booklet to fill in the missing ERISA-required provisions. When a wrap document is used, the ERISA plan document or SPD is made up of two documents— the insurance certificate or benefit booklet and the wrap document.
Wrap documents can be used to combine more than one welfare benefit under a single plan, which is sometimes referred to as a “mega wrap plan” or an “umbrella plan.” For example, a wrap document could be used to bundle medical benefits, dental benefits, disability coverage and an HRA under one single ERISA plan. This document would wrap around all the third-party documentation (for example, insurance certificates or benefit booklets) to include the missing ERISA provisions and combine the benefits into one plan.
All non-church, non-governmental employers should verify, for all of their ERISA-covered plans, that they have a written plan document. There is no small employer nor non-profit exception to ERISA’s plan document requirement. Additionally, virtually all welfare benefit plans that are subject to ERISA must provide participants with an SPD, regardless of the size of the sponsoring employer. There are also particular rules about how and when these documents must be distributed to participants.
Download these guides for further instruction, and contact your Higginbotham's compliance experts with questions.
Subscribe to Higginbotham emails for HR News Worth Review sent to your inbox monthly.