Quick Links to Articles for January 7, 2022

EMA Testifies Before EPA on Proposed Ethanol Blending Mandates for 2020, 2021 and 2022

Reminder: OSHA COVID-19 ETS

Capitol Hill Update 

December 2021 EMA Small Business Committee (SBC) PAC Contributions

December 2021 Contributors to EMA MDF 

Federated Insurance Employment Practices Network HR Question of the Month 

Federated Insurance Risk Management Academy Webinar

EMA Member Services Spotlight Featuring: Office Depot and Office Max through NPP

The 2021 posting cycle for OSHA’s workplace injury and illness reporting rule begins on February 1, 2022 and runs through April 30. The OSHA injury and illness recording and posting requirements apply to most establishments (workplaces) with more than 10 employees. However, there are exemptions from recordkeeping for certain establishments such as gasoline stations. OSHA requires employers in regulated workplaces to record and post all work-related injuries occurring during the previous calendar year. The following list identifies establishments within the petroleum marketing industry and indicates whether the establishment must comply with the OSHA Injury and Illness recording and posting requirements: 

I. MUST MY WORKPLACE COMPLY?

Exempt Workplaces:

• Gasoline Service Stations (without c-stores) (NAICS Code 447190) are exempt from the OSHA injury and illness requirements regardless of the number of employees. However, gasoline stations contact OSHA when an employee is killed on the job or suffers a work-related hospitalization, amputation or loss of an eye.

Possibly Exempt Workplaces:

• Convenience Food Stores with Gasoline Stations (NAICS Code 447110). Where a convenience store and gasoline station are combined, exemption from the OSHA injury and illness reporting rule will depend on the “primary activity” at the establishment. The primary activity of an establishment is determined by the value of receipts for each business activity. If the value of receipts for fuel sales is greater than c-store sales, then the establishment is classified as a Gasoline Service Station and is exempt from the injury and illness reporting rule. If the c-store gross receipts are greater than fuel sales, then the OSHA Injury and Illness requirements apply.

Workplaces that Must Comply:

• Petroleum Bulk Plants (NAICS Code 424710) with more than 10 employees working at the bulk plant or company headquarters must comply with the OSHA injury and illness requirements. This category includes motor fuel, heating oil and propane bulk facilities.

• Petroleum and Petroleum Products Merchant Wholesalers - No Bulk Facilities (NAICS 424720) with more than 10 employees must comply with the OSHA injury and illness requirements. This category includes motor fuel, heating oil and propane non-bulk facilities.

• Fuel Oil Dealers (NAICS Code 454310) with more than 10 employees must comply with the OSHA injury and illness requirements.

• Plumbing, Heating and Air-Conditioning Contractors (NAICS 238220) with more than 10 employees must comply with the OSHA injury and illness requirements. This industry comprises establishments primarily engaged in installing and servicing plumbing, heating, and air-conditioning equipment. Contractors in this industry may provide both parts and labor when performing work. The work performed may include new work, additions, alterations, maintenance, and repairs.

II. HOW MUST I COMPLY?

Forms and Posting:

• Form 300 - Employers are required to keep Form 300, Injury and Illness Log listing all injuries and illnesses that occur in the workplace thought the reporting year. 

• Form 301 - Employers are required to use OSHA Form 301 to record each workplace injury and illness within seven days of occurrence.

• Form 300A - Employers are required to post Form 300A, the Summary of Work-Related Injuries and Illnesses, in a workplace every year from February 1 to April 30. 

• OSHA Forms 300, 300A and 301 and Instructions are available at: 
  https://www.osha.gov/recordkeeping/RKforms.html

Employee Access:

• Current and former employees, or their representatives, have the right to access injury and illness records. Upon request, employers must provide a copy of the relevant record(s) by the end of the next business day.

Recordable Injuries and Illnesses:

OSHA's definition of work-related injuries, illnesses and fatalities are those in which an event or exposure in the work environment either cause or contributes to the condition. In addition, an event or exposure in the work environment significantly aggravates a pre-existing injury or illness is also considered work-related. Injuries include, but not limited to: a cut, fracture, sprain, or amputation. Illnesses include both acute and chronic illnesses, such as, but not limited to: a skin disease (i.e. contact dermatitis), respiratory disorder (i.e. occupational asthma, pneumoconiosis), or poisoning (i.e. lead poisoning, solvent intoxication). The following injury and illnesses must be recorded:

• All work-related fatalities.

• All work-related injuries and illnesses that result in days away from work, restricted work or transfer to another job, loss of consciousness or medical treatment beyond first aid.

• All significant work-related injuries or illnesses diagnoses by a physician or other licensed health care professional, even if it does not result in death, days away from work, restricted work or job transfer, medical treatment beyond first aid, or loss of consciousness.

• Illnesses include both acute and chronic illnesses, such as, but not limited to, a skin disease (i.e. contact dermatitis), respiratory disorder (i.e. occupational asthma, pneumoconiosis), or poisoning (i.e. lead poisoning, solvent intoxication).

A guide to identifying recordable injury and illnesses can be found in the FORM 300, 300A and 301 instructions at: https://www.osha.gov/recordkeeping/RKforms.html. 

IMPORTANT! All employers of any kind, in any industry are required to notify OSHA by telephone or online when an employee is killed on the job or suffers a work-related hospitalization, amputation or loss of an eye. Fatalities must be reported within 8 hours and inpatient hospitalization, amputation or loss of an eye must be reported within 24 hours. To make a report:

• Call the nearest OSHA office.

• Call the OSHA 24-hour hotline at 1-800-321-6742.

• Report online

Be prepared to supply: Business name; names of employees affected; location and time of the incident, brief description of the incident; contact person and phone number. 

IMPORTANT! AK, AZ, CA, HA, IN, IA, KY, MD, MI, MN, NV, NM, NC, OR, SC, TN UT, VT, VA, WA and WY have their own state OSHA programs for private sector employees. These states follow federal rules but may vary slightly. Check your state OSHA website to determine whether any variations from the federal program exist. Go tohttp://www.osha.gov/dcsp/osp/  to find contact information for state programs.

III. WHERE CAN I GET MORE INFORMATION?

For more information go to: https://www.osha.gov/recordkeeping or contact Mark S. Morgan, EMA Regulatory Counsel at: markmorgan@verizon.net. 

Earlier this week, EMA President Rob Underwood provided comments during an EPA public hearing regarding the proposed ethanol blending mandates for 2020-2022. Rob urged the EPA to fully consider the impact the RFS places on small business energy marketers when setting the upcoming annual RVOs for 2020, 2021 and 2022. “If ethanol volumes continue to rise as proposed in 2022, obligated parties will be forced to manufacture E15 blends to meet their annual RVOs. E15 blends made from corn ethanol are not compatible with most existing underground storage tank systems in operation today. Look no further than EPA’s document from January 2020 entitled E15’s Compatibility with UST Systems which states, “Most older and even some newer existing UST systems (which includes but is not limited to tanks, pumps, ancillary equipment, lines, gaskets, and sealants) are not fully compatible with E15 and require modification before storing E15. For example, the actual tank is often compatible with E15, but some of the connectors and pump components may not be. That can lead to leaks. Dispensers are not part of the UST system, by definition, but face the same compatibility concerns and are a critical part of the fueling system for our constituents.” Clickhere to read the full EPA statement. 

The EPA issued proposed RFS annual blending mandates last month that significantly lowered renewable fuel (ethanol) volumes for 2021 (13.3 billion), and in an unprecedented move, the agency retroactively reduced the 2020 renewable fuel (ethanol) blending mandate previously set at 15 billion gallons to 12.5 billion gallons. According to the EPA, the retroactive reduction is due to lower demand for transportation fuels during the COVID-19 pandemic. The EPA already set the 2021 biomass-based diesel (biodiesel) blending mandate at 2.43 billion gallons in a previous rulemaking. The EPA delayed decisions on 2021 blending obligations by more than a year and recently missed the November 30th deadline to finalize 2022 blending mandates. 

EMA has for many years called for lower annual corn ethanol blending volumes that would allow marketers to determine for themselves whether to sell E15 rather than be required to do so through a de facto mandate. EMA sent multiple letters to the EPA and the National Economic Council this year requesting urgent action to reduce the corn ethanol mandate to address the current E15 crisis. Click here and here to read EMA’s letters. 

EMA fully believes in renewable fuels and their importance in the liquid fuels market and plans to ask the Biden Administration to ensure that future federal grant funds be available for small business energy marketers to upgrade their underground storage tank system equipment to safely and legally sell E10 plus blends. 

OSHA released a final emergency temporary standard (ETS) in November requiring employee COVID-19 vaccination or weekly testing at all employers with 100 or more employees. The ETS was stayed by a federal court last month which delayed the original December 5, 2021 compliance deadline. On Dec. 17, the 6th U.S. Circuit Court of Appeals lifted the stay and OSHA is now requiring employers with 100 or more employees to have their covid-19 testing in place by January 10, 2022. 

Employee testing must begin by February 9, 2022. However, compliance may be stayed once again as a number of state attorney generals opposed to ETS have appealed the lifting of the stay to the U.S. Supreme Court(SCOTUS). SCOTUS will hear arguments regarding the mandate today, Friday, January 7th. In the meantime, covered employers should assume the ETS is going forward as planned and prepare to come into compliance by the January 10th and February 9th compliance deadlines.  

CLICK HERE FOR THE FULL EMA COMPLIANCE BULLETIN
CLICK HERE (links to downloadable .DOCX file) FOR OSHA’S COVID-19 Vaccination, Testing and Face Covering Policy Template

The Senate made no progress on the Build Back Better Act (BBB) in the first week back in session following Senator Manchin’s (D-WV) announcement that he could not support the current plan. While Senator Manchin affirmed that he agreed with Democratic leaders and the White House on certain aspects of the bill, including much of the climate section, he has not held new negotiations with the White House. Senate Majority Leader Chuck Schumer (D-NY) is taking a pause for the next few weeks to focus on voting rights legislation, while publicly still insisting that the party will come to an agreement on BBB before the President’s not-yet-scheduled State of the Union (likely late February or early March).

Congress will soon turn to government funding, as a temporary extension of current funding expires in mid-February. Negotiations between Appropriations Committee leaders to finalize an FY 22 budget are expected to begin soon. The two power sources here are House Democrats and Senate Republicans, as any agreement will require a bipartisan 60 vote threshold in the Senate. 

The Biden Administration is still determining how to administer funds and programs authorized in the $1 trillion bipartisan infrastructure law. The Departments of Transportation and Energy expect to release EV charging station guidance for state and local governments in early February, and guidance for the EV national charging network in early May. Mitch Landrieu, the White House Infrastructure Coordinator and former Mayor of New Orleans, called on governors to appoint state infrastructure coordinators in a letter this week. To read the entire letter, click here. The White House will work with OMB to release guidance for coordinators for discretionary and formula funding parameters by the end of this month. 

PAC Co-Chairs Brad Bell and Tim Keigher are grateful for the Energy Marketers of America Small Business Committee (SBC) PAC contributions from the following individuals during the December 1-31, 2021 time frame:

California: Bonnie Addario, Larry Clanton, Matt Cullen, Gerald Cummings, Sanjiv Patel, Reed Rinehart, Frank Courtney Roche

Iowa: Glenn Hasken

Kansas: Dennis McAnany, Gratz Peters

Louisiana: Natalie Isaacks

Maryland: Michael Davis

Michigan: John Foster, Kelly Lappinga

New York: Kris DeLair

North Carolina: Wesley Campbell, Charles Cox, Hannah Holt, Walter Holt

North Dakota: Mike Rud

Pennsylvania: Doug Woosnam

Tennessee: Sally Darnell, Emily LeRoy, Brooklyn Vizard

Utah: John Hill

Vermont: Matt Cota

Virginia: Robert Claytor, Susan Isard, Cary Nelson

Washington: Brad Bell, Todd Shaw

Energy Marketers of America’s Marketer Defense Fund wants to thank the following individuals for their contributions during the December 1- 31 timeframe:

Kansas: Dennis McAnany
Louisiana: Grady Gaubert
Nebraska: Mark Whitehead
Oklahoma: Oklahoma Petroleum Marketers & Convenience Store Association
South Carolina: Richard Mixson

Corporate donations are acceptable. MDF funds have been used to create a COVID-19 Situational Update & Resources webpage, to hire experts to cover important regulatory agencies and disaster relief dedicated to strengthening our lobbying efforts on Capitol Hill. Click here to donate to the EMA MDF.

Federated Insurance’s HR Question of the Month focuses on employment-related practices liability issues. This month’s question is: We are trying to determine whether our organization falls under the OSHA COVID-19 Vaccination and Testing Emergency Temporary Standard. I know it applies to companies with 100 or more employees, and if it applies, we must have employees either vaccinate for COVID-19 or require weekly COVID-19 testing. How does OSHA define having 100 employees? How does it apply if you have multiple locations? Additionally, we have several part-time and seasonal employees. How does the employee calculation impact these types of employees? Please click here to read the response.

For additional information or to discuss this in further detail, please contact your Federatedregional representative or EMA’s National Account Executive Jon Medo at 800.533.0472. Federated is a EMA Corporate Platinum Partner.

This article is for general information and risk prevention only and should not be considered legal or other expert advice. The recommendations herein may help reduce, but are not guaranteed to eliminate, any or all risk of loss. The information herein may be subject to, and is not a substitute for, any laws or regulations that may apply. Qualified counsel should be sought with questions specific to your circumstances. © 2022 Federated Mutual Insurance Company.

Each year, OSHA releases a summary of their list of Top Ten workplace safety violations. This online seminar will look at OSHA’s most recent Top Ten violations. More importantly, however, we will focus on risk management policies, procedures, and training resources to implement and help reduce employee accidents and injuries! 

What you will learn: 

• Quick overview of the OSHA Top Ten violations

• Training resources, programs and policies to implement in your business

• How to positively impact workplace productivity and culture through accident prevention

Advanced registration is required for this 45-minute webinar. 

For additional information or to discuss this in further detail, please contact your Federatedregional representative or EMA’s National Account Executive Jon Medo at 800.533.0472. Federated is a EMA Corporate Platinum Partner.

Office Depot and National Purchasing Partners (NPP) can help you save money on janitorial, breakroom and cleaning supplies. Whether you are looking to switch to disinfecting hand soap or want to stock up on all-purpose cleaners, Office Depot and OfficeMax can help you get the job done. EMA members save money with NPP discounts and free shipping. Certain items are even available for store pickup if your need is immediate. 

Additionally, members who enroll with NPP can save on items you use every day, such as office supplies, furniture and technology, both in-store and on-line. Explore NPP’s diverse catalog of business and employee offers. 

To access Office Depot and OfficeMax discounts through NPP, enroll your business for FREE here. There is no obligation to purchase. NPP is a member benefit provider of EMA.

Restrictions may apply. Subject to availability.