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Total Articles: 152

Ebola Virus: Frequently Asked Questions

Ebola virus disease (formerly known as Ebola haemorrhagic fever) is a severe, often fatal illness, with a death rate of up to 90%. The illness affects humans and nonhuman primates (monkeys, gorillas, and chimpanzees).

Ebola Resource Center

Fisher & Phillips is monitoring the Ebola situation and will be updating the resource center on a regular basis. The materials on this page have been generated from Fisher & Phillips attorneys and other reliable sources to address the rising concerns of employers regarding the Ebola outbreak. Click on any of the links below to learn more.

OSHA Guidance on Ebola in the Workplace

OSHA has just released guidelines on protecting workers from Ebola in the workplace. Noting that employers are responsible for protecting workers from exposure to Ebola and chemicals used for cleaning and disinfecting, OSHA’s guidelines address cleaning and disinfecting surfaces, areas, and or materials possibly contaminated from blood, urine, feces, vomit, and other bodily fluids that may contain Ebola. In addition, OSHA’s guidelines address the proper waste disposal of potentially contaminated objects. (See OSHA’s Fact Sheet: Cleaning and Decontamination of Ebola on Surfaces.)

Confronting Ebola Concerns in the Workplace

The spread of Ebola hemorrhagic fever (EHF) and the incidence of Ebola cases in the United States have raised issues for employers and employees on the appropriate workplace responses. Workplace safety and health, including measures to protect employees, leave and health management, labor relations and workplace privacy concerns all are implicated.

Ebola Concerns – How Should Employers Respond?

The public concern and confusion generated by the third reported diagnosis of Ebola in the U.S. has reached the workplace. What was once considered just a public health concern has become an employment issue as well. Employees are anxious about individuals who have travelled to and from West Africa, and about the potential for contracting the virus from co-workers, clients, customers, and patients.

Easing Ebola Fears in the Workplace

Howard Mavity was quoted in the Employee Benefit News article "Easing Ebola Fears in the Workplace" on October 17, 2014. The article addressed the rising concerns of employers regarding the Ebola outbreak and reinforced the importance of re-examining workplace travel policies and pandemic plans.

Ebola, Meet The ADA: Advice For Employers On Handling The Outbreak

Kevin Troutman and Matthew Korn’s article “Ebola, Meet The ADA: Advice For Employers On Handling The Outbreak” was featured in Forbes on October 16, 2014.

Response to Ebola Concerns – Guidance for U.S. Workplaces

With the diagnosis of yet another case of Ebola virus disease in the United States, and the lack of formal travel restrictions, many employers – particularly those in the healthcare industry – are left wondering how they should react to the very real concerns of their employees, patients and customers about the potential for transmission of this disease by those traveling to and from West Africa. The Equal Employment Opportunity Commission's limitations on questions and examinations related to personal medical conditions further confound employer responses. Finally, the Occupational Safety and Health Administration's position that Ebola is already covered by its Bloodborne Pathogens and Respiratory Protection standards is causing concerns that employers are out of compliance with an existing obligation.

Are You Prepared to Deal with Potential Exposure to Ebola in the Workplace?

Executive Summary: With the diagnosis of the second Ebola case in the United States on October 12, 2014 – one in which a healthcare worker contracted the lethal disease while performing her job duties – U.S. employers are examining what necessary precautions should be taken to control and prevent the spread of the disease. Perhaps the most important step for employers right now is to become educated and stay informed.

White House Meets With Business Reps on "Fair Pay and Safe Workplaces" Executive Order

The White House held a “listening session” on the Fair Pay and Safe Workplaces Executive Order with major employer association representatives on Friday, October 13, 2014. The Executive action calls on the U.S. Department of Labor DOL to issue regulations that would impose multiple new obligations on federal government contractors.

The Employer’s Reference Guide to Information About Ebola

Concerns related to the Ebola outbreak are increasing among both employers and employees in the United States. The outbreak is currently most active in the West African nations of Guinea, Liberia, Nigeria, and Sierra Leone. However, there has been at least one confirmed death from the disease in the United States, and it has recently been reported that an American nurse in Texas who assisted in treating the patient who passed away also recently tested positive for Ebola. The key to preventing the spread of Ebola—as with many communicable diseases—is identifying and isolating potential cases as quickly as possible.

Workplace Safety and Health Update

We are pleased to bring you our Workplace Safety and Health Update. With experienced OSHA and MSHA attorneys located strategically throughout the nation, Jackson Lewis is uniquely positioned to serve all of an employer’s workplace safety and health needs.

OSHA Seeks Input on Workplace Chemical Exposure Levels

The Occupational Safety and Health Administration has issued a request for information (RFI) regarding chemical management methods and permissible exposure limits (PELs). According to a notice to be published in the October 10 edition of the Federal Register, the agency is "reviewing its overall approach to managing chemical exposures in the workplace and seeks stakeholder input about more effective and efficient approaches that addresses challenges found with the current regulatory approach."

Is your workforce knowledgeable about Ebola . . . and should it be?

Concerns related to the Ebola outbreak are increasing on the part of both employers and employees in the U.S.. While the outbreak is most active in the West African nations of Guinea, Liberia, Nigeria, and Sierra Leone, there has been at least one confirmed case in the United States. The key to preventing the spread of Ebola – as with many communicable diseases – is identifying and isolating potential cases as quickly as possible.

Ebola: Emerging Concerns for Healthcare Facilities and Employers

Recent months have been filled with news reports about the Ebola virus outbreak in West Africa. On August 8, 2014, the World Health Organization (WHO) stated that the spread of the Ebola virus in West Africa had become an “international health emergency,” and the Centers for Disease Control and Prevention (CDC) declared the outbreak the “first Ebola epidemic the world has ever known.” Over 3,300 people have perished from the virus so far, and the virus continues to spread in West Africa at an alarming rate. The BBC reported earlier this week that five people are now being infected every hour in Sierra Leone.

The Ebola Exposure: U.S. Workplace Considerations

The World Health Organization (WHO) has declared that the Ebola outbreak in West Africa has reached the proportions of an international health emergency and the Centers for Disease Control and Prevention (CDC) confirmed that the first U.S. case of the disease was diagnosed in Dallas, Texas on September 30, 2014. There is currently no vaccine for this virus, although efforts are underway to develop a vaccine.

Court of Appeal: Federal OSHA preempts Unfair Competition Claims

California's unfair competition law, Business and Professions Code section 17200, is quite broad. Plaintiffs can bring claims for injunctive relief and restitution for just about anything they can prove is unlawful, unfair, or fraudulent.

Workplace Safety and Health Update

We are pleased to bring you our Workplace Safety and Health Update. With experienced OSHA and MSHA attorneys located strategically throughout the nation, Jackson Lewis is uniquely positioned to serve all of an employer’s workplace safety and health needs.

Workplace Safety and Health Update

We are pleased to bring you our Workplace Safety and Health Update. With experienced OSHA and MSHA attorneys located strategically throughout the nation, Jackson Lewis is uniquely positioned to serve all of an employer’s workplace safety and health needs.

Federal OSHA Proposes to Take Over Enforcement of Construction Standards in Arizona

On August 21, 2014, the federal Occupational Safety and Health Administration (OSHA) proposed to revoke its approval of Arizona’s state occupational health and safety plan with respect to construction. If OSHA follows through on this proposal, Arizona employers that are engaged in construction work and now are subject only to regulation by the Arizona Department of Occupational Safety and Health (ADOSH) will become subject to federal OSHA enforcement and regulation.

Transportation employers, can you survive the federal audit “tag team”?

The federal Occupational Safety and Health Administration and the Federal Motor Carrier Safety Administration are tag-teaming transportation employers. They’ve signed a Memorandum of Understanding in which they agree to share information about allegations of safety, coercion, and retaliation.

Comment Period Extended on Proposed Rule to Improve Tracking of Workplace Injuries and Illnesses

OSHA has announced that it will extend the comment period on the proposed rule to improve the tracking of workplace injuries and illnesses to Oct. 14, 2014. The proposal, published on Nov. 8, 2013, would amend OSHA’s recordkeeping regulation to add requirements for the electronic submission of injury and illness information that employers are already required to keep.

Brooklyn Medical Facility Cited by OSHA for Inadequate Workplace Violence Safeguards

Employees of a Brooklyn medical facility were allegedly exposed to head, eye, face and groin injuries and intimidation and threats during routine interactions with patients and visitors. An inspection by OSHA reportedly found approximately 40 incidents of workplace violence between February 7 and April 12, 2014. These incidents involved employees who were threatened or physically and verbally assaulted by patients and visitors, or when breaking up altercations between patients. The most serious incident was an assault of a nurse, who sustained severe brain injuries when she was attacked while working. As a result of its alleged failure to adequately protect its employees against workplace violence, the medical center faces $78,000 in fines.

OSHA Steps Up Enforcement for Both Temporary Worker Staffing Agencies and Host Employers

Attorney Dean F. Kelley. Following the launch of its Temporary Worker Initiative last year, [see Krukowski & Costello, S.C.'s May 2013 Vol. 3 E-Newsletter] OSHA continues to step up enforcement and inspections for temporary worker staffing agencies and host employers that utilize temporary workers. OSHA Directorate of Enforcement Programs recently issued a new enforcement memorandum to all Regional Administrators with new enforcement and compliance guidelines for all OSHA field staff throughout the U.S.

Workplace Safety and Health Update

We are pleased to bring you our Workplace Safety and Health Update. With experienced OSHA and MSHA attorneys located strategically throughout the nation, Jackson Lewis is uniquely positioned to serve all of an employer’s workplace safety and health needs.

OSHA Communicates New Instruction for Communication Tower Personnel Hoists

In 2013, the communications industry was confronted by an increasing number of fatalities involving worker falls from cell tower sites. Alarmingly, OSHA recorded fourteen fatalities, all of which were determined preventable — either a result of an employer’s failure to provide fall protection or an employee’s failure to use the equipment. In the wake of this statistic, on July 17, 2014, OSHA implemented a new directive governing all work activities on communication towers that involve the use of a hoist to lift personnel to or from their workstations.

Keep Your (Employees) Cool This Summer

Last year, some parts of the country experienced the hottest summer on record. This year may well be record breaking as well, at least in some parts of the country. Keeping employees safe and cool during the next four months should be of paramount importance for all business owners and employers.

If You Can’t Stand the Heat . . .You’re Not Alone: OSHA Kicks Off its Annual Heat Illness Campaign

On May 22, the Occupational Safety and Health Administration (OSHA) announced that it was bringing back its heat illness prevention campaign for the fourth straight year. The campaign primarily targets industries with workers exposed to the heat, such as agriculture, construction, landscape maintenance, tree trimmers, and oil and gas drilling and servicing. It also targets industries in which work is performed indoors in hot areas, such as the restaurant and dry cleaning industries. The campaign reminds employers to provide employees with plenty of water, shade, and rest during the summer months. OSHA is devoting much attention to the topic, which inspired the agency’s first and only app (available for free online at iTunes and the Google Android store).

MSHA Assistant District Manager Asserts That Competent Persons Performing Workplace Exams Are Agents of the Operator

At a mining industry safety conference in June, an MSHA Assistant District Manager stated that the agency viewed persons that perform workplace examinations pursuant to 30 C.F.R. § 56.18002 as performing an “agent-like” function that subjects them to the same Mine Act individual liability that can be directed at supervisors and managers. The statement was made while addressing MSHA enforcement efforts and priorities directed at the recent spike in fatal accidents at metal-nonmetal mining operations. The agency believes that some of these fatalities could have been avoided with more effective workplace examinations—a point that MSHA intends to emphasize in upcoming inspections.

OSHA Agrees To Refer Untimely Whistleblowers to the NLRB

Thanks to a recent agreement between the Occupational Safety and Health Administration and the National Labor Relations Board, safety whistleblowers won't necessarily be defeated by untimely complaints. The agencies have agreed that, whenever a whistleblower tries to file a complaint after the 30-day deadline for such complaints, OSHA will simply refer the complainant to the NLRB, which has a six-month charge-filing period.

Workplace Safety and Health Update

Week of June 9, 2014.

Tips For Keeping Your Employees Safe And Cool During The Summer

In 2013, the Phoenix area experienced the hottest summer on record since 1895. As we launch the official summer season this week, keeping employees safe and cool during the next four months should be of paramount importance for all business owners and employers, Shayna wrote.

Miners Can Prevent Fatal Accidents

With a momentary lapse of attention, any of us can cause a grave accident––at home, in a vehicle, on vacation, or at work. Miners must be ever vigilant for their own safety and the safety of others. The mining industry can reduce fatalities and injuries by encouraging employees to identify, correct, and report hazardous conditions. That is the current message of the Mine Safety and Health Administration (MSHA). Another message is that miners are legally protected for engaging in such safety activities, and retaliation by “any person” will be prosecuted.

OSHA and the NLRB Offer Safety Whistleblower Plaintiffs a Second Bite of the Apple by Resurrecting Untimely Whistleblower Claims

In our last Workplace Safety & Health blog post, we discussed proactive steps employers can take should the Occupational Safety and Health Administration (OSHA) arrive with a union representative or community activist to inspect a nonunion worksite. On May 21, OSHA increased its emphasis on promoting employee rights to union representation when Anne G. Purcell, associate general counsel of the National Labor Relations Board (NLRB), issued a memorandum announcing a referral program between OSHA and the NLRB. Under the new program, OSHA will notify all complainants who file untimely whistleblower charges pursuant to section 11(c) of the Occupational Safety and Health Act (OSH Act) that they may also file unfair labor practice charges with the Board under the National Labor Relations Act (NLRA). Purcell’s memorandum follows a March 6, 2014, directive issued by Assistant Secretary of Labor for Occupational Safety and Health David Michaels, wherein OSHA agreed to notify all complainants who file an untimely whistleblower charge of their right to file a charge with the Board.

OSHA and NLRB referral agreement could extend NLRB’s reach into workplace safety issues.

The Occupational Safety and Health Administration (OSHA) is an arm of the U.S. Department of Labor, and is the federal agency charged with the enforcement of legislation related to the health and safety of workers.

How to Manage Your Off-Site Employees' Safety

QUESTION: We have a number of employees working off-site. How can we best ensure that they are working safely when we are not able to provide regular supervision?

How to Be Prepared if a Non-Employee Union Agent Shows Up with OSHA at an Inspection

As we discussed in a previous post, the Occupational Safety and Health Administration (OSHA) issued an interpretation letter last year stating that non-employee union organizers or community activists could “represent” employees at non-union workplaces during OSHA inspections. OSHA’s interpretation letter caused quite a stir in the employer community, and it has been reported that, OSHA is trying to include non-employee union organizers in some inspections. This post provides practical advice to employers on steps they can take should OSHA arrive with a union representative for an inspection of a nonunion worksite.

Workplace Safety and Health Update

Coal Companies’ Constitutional Case against MSHA Employees Fails.

Is OSHA's Temp Worker Initiative Foreshadowing Things To Come?

I support OSHA’s temporary worker focus. Employers need to take more steps to ensure that temporary employees don’t fall through the cracks and do not receive adequate safety training, Howard wrote.

My Supervisor Violated the OSHA Standard. What Do I Do Now?

Supervisors are supposed to set the tone, provide on-the-job training and consistently enforce safety processes. What happens when the supervisor is the one who breaks the rules? OSHA decisions and OSHA compliance officer training expressly state that the employer’s entire safety program is suspect when its supervisors violate the standards. The higher up the supervisor, the bigger the problem. Not only does the supervisor’s bad conduct negatively frame the inspection and OSHA’s ultimate decisions, but the supervisor’s involvement has legal consequences.

The Lion Bite Case Sleeps in Nevada, But It’s a Whale of a Story

The tragic death of an orca (commonly called killer whales) trainer at SeaWorld of Florida in 2010 has stimulated much debate on whether direct contact between wild animals and humans should be permitted in entertainment contexts, and whether the Occupational Safety and Health Administration (OSHA) should regulate this activity. Federal OSHA responded to the SeaWorld accident by issuing citations alleging willful violations of its General Duty Clause, which can be applied when no standard addresses a hazard. OSHA has invested significant resources to pursue the case, which is now pending before the District of Columbia Circuit Court of Appeals.

Workplace Safety and Health Update

High Court Holds Time Changing Clothes Is Not Compensable; Barges at Coal Load-out Facility Fall under MSHA, Judge Rules; Ask a Jackson Lewis Attorney

OSHA Tasked by Congress to Protect Whistleblowers

The Occupational Safety and Health Administration has been tasked by Congress to enforce the whistleblower provisions of 22 different statutes. These laws protect workers in many industries throughout the country from retaliation when they report unsafe working conditions, fraud or something that would endanger the public.

Workplace Safety and Health Update

OSHA Issues Warning to Communications Tower Industry; OSHA Forecasts Nearly 38,000 Inspections This Year; Employment Law Q&A

OSHA Targets Communications Tower Industry

U.S. Occupational Safety and Health Administration (OSHA) has warned companies involved in the telecommunications tower industry that OSHA sees “an alarming increase in worker deaths” in the industry and will step up its enforcement efforts. All companies involved in tower construction, maintenance, leasing, and operation, therefore, should prepare for more frequent and more intense OSHA inspections. The warning from Assistant Secretary of Labor for OSHA Dr. David Michaels says the agency will pay particular attention to training and fall protection issues and will focus on possible hazards from falling objects, equipment failure, and collapsing towers.

OSHA Signals an Increased Focus on Hospital Industry

On January 15, 2014, the U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) launched a new, online compliance assistance tool for hospitals called, “Worker Safety in Hospitals: Caring for our Caregivers.” While OSHA’s stated objective for this resource is commendable—to help hospitals enhance worker safety—the information includes some generalizations that could be initially disconcerting, which may detract from the resource’s general credibility.

OSHA creates new on-line resource for hospitals and healthcare entities.

According to the Department of Labor’s Occupational Safety and Health Administration (OSHA), hospital workers regularly face serious workplace hazards, including exposure to chemicals, hazardous drugs, and needle-sticks. Those workers often suffer musculoskeletal injuries that come from manually lifting and repositioning patients.

OSHA Extends Silica Rule Comment Deadline to February 11

On the afternoon of January 24, 2014, with one-and-a-half business days left to the original deadline of January 27, the Occupational Safety and Health Administration (OSHA) announced a 15-day extension of the comment period to the agency’s proposed rule on occupational exposure to respirable crystalline silica. The new deadline is February 11, 2014.

Hospitals an Area of Concern for OSHA

Last week, the U.S. Department of Labor’s Occupational Safety and Health Administration launched a web page devoted to hospital worker safety. According to the Bureau of Labor Statistics, in 2012, U.S. hospitals recorded 250,000 work-related injuries and illnesses, almost 60,000 of them causing employees to miss work. These statistics, according to OSHA, make hospitals one of the most hazardous places to work, even more dangerous for employees than working in construction or manufacturing.

Are Your Employees Properly Trained to Ensure Their Safety at Work? If Not, Employer Penalties May Not Simply be Fines, but Imprisonment

Employers in all industries face the problem of training workers and ensuring their safety. Whether it is preventing burns from the hot oil of the french-fry maker or teaching skills to handle a heightened risk of workplace violence, employers need to make sure their employees are appropriately trained so the workplace is safe. Without such measures, as one court has ruled, potential fines and monetary payments may not be enough and prison time may be imposed.

Government Safety Agencies Set Regulatory Agendas

The Occupational Safety and Health Administration (OSHA) and the Mine Safety and Health Administration (MSHA) are moving ahead with regulatory initiatives that could substantially impact the business community.

OSHA's new online form provides an easy method to workers for filing whistleblower retaliation claims.

The federal Occupational Safety and Health Administration (OSHA) works to ensure safe and healthy conditions for working men and women on a national basis, by both setting and enforcing workplace standards, and by providing training, education and assistance to employers and employees, when necessary or requested. The agency also enforces the whistleblower protection provisions of twenty-two different statutes, protecting employees who report violations of consumer protection laws and against employers engaged in particular industries, including airlines, trucking, rail, and public transportation.

OSHA Continues Crackdown on Nursing and Residential Care Facilities

If you operate a nursing home or residential care facility, it is time to take a hard, critical look at the health and safety risks in your workplace. Failure to correct problems could prove a very expensive mistake – as a nursing home in New Jersey recently discovered.

Workplace Safety and Health Update

OSHA’s Recordkeeping Proposal Deserves Attention; Consider a Plan to Address New MSHA Policy on Impeding Inspections; OSHA Recommends New Exposure Limits; Jackson Lewis Lawyers Represent Mine Operators in Lawsuit against MSHA.

Workplace Safety and Health Update

OSHA’s Recordkeeping Proposal Deserves Attention; Consider a Plan to Address New MSHA Policy on Impeding Inspections; OSHA Recommends New Exposure Limits; Jackson Lewis Lawyers Represent Mine Operators in Lawsuit against MSHA

So You Think OSHA Doesn't Apply? ... Here Are Four Ways It Does

Many employers, especially white collar and non-industrial employers, think they are exempt from the requirements of the Occupational Safety and Health Act ("OSH Act") due to the nature of their businesses. However, the jurisdiction of the Occupational Safety & Health Administration ("OSHA"), which enforces the OSH Act, is broad and over-arching. All employers are covered. The following are just some examples of programs or policies that OSHA requires every employer to have in place regardless of the nature of its business.

Workplace Injuries and Illnesses Continue to Decline; OSHA Schedules Hearing on Electronic Reporting Proposal

According to the Bureau of Labor Statistics’ (BLS) annual Workplace Injury and Illness Summary, private sector employers reported approximately 3 million nonfatal workplace injuries and illnesses in 2012, or about 3.4 instances per 100 full-time equivalent workers, down from 3.5 instances per 100 workers reported in 2011. This data is in keeping with the steady decline of reported injury and illness rates over the past five years.

Deadline for Employee Training under OSHA’s Revised Hazard Communication Standard Approaches

Employers whose employees may be exposed to hazardous chemicals in the workplace must train their employees on the Occupational Safety and Health Administration’s new labeling elements and new Safety Data Sheet format by December 1, 2013.

How To Manage An OSHA Inspection

Many articles on handling OSHA inspections provide the same basic guidelines and little explanation of why an employer should take certain steps. Readers already know to take photos whenever the Compliance Officer takes shots and to take notes, but do you know "why" to take those photos and "what" to look for? What do you need to note in order to challenge citations when they are issued six months later?

Workplace Safety and Health Weekly Update

California Governor Signs Three Occupational Safety and Health Bills, but Nixes Mandating Abatement

OSHA Launches Online Tools to Promote Chemical Safety

The Occupational Safety and Health Administration (OSHA) has created two online resources aimed at reducing chemical hazards in the workplace. The first is an online toolkit to help employers identify chemicals that can be used as alternatives to more hazardous substances, or eliminate them altogether. According to OSHA, the toolkit is appropriate for manufacturers that use chemicals in their production processes and businesses that use products containing chemicals in their everyday operations. The webpage includes seven linkable steps to make the workplace safer, as well as an introductory video.

OSHA Proposes Further Restriction of Silica Exposures

OSHA has regulated occupational exposures to airborne silica since 1971 and has recently proposed significant revisions to its regulations limiting workers' exposure to airborne silica. These revisions are explicitly intended to extend the scope of the regulation to additional workers, employers and occupations. Because silica is present in virtually all sand, cement, stone and glass products, it is important for all employers, particularly those not subject to the original silica standard, to determine whether the proposed amendments will subject them to regulation and possible fines and penalties.

Federal Court in Minnesota Provides Guidance on Non-Injury Retaliation Claims Under FRSA

Granting complete summary judgment to BNSF Railway Co., Chief Judge Michael Davis of the U.S. District Court for the District of Minnesota interpreted and provided the railroad industry with guidance pertaining to the parameters of a non-injury based retaliation claim under 49 U.S.C. § 20109 of the Federal Railroad Safety Act (FRSA)—an issue of first impression in the district, and one of only a few such decisions nationwide. Kuduk v. BNSF Railway Co., No. 12-cv-00276 (September 26, 2013).

Workplace Safety and Health Weekly Update

In the wake of the West, Texas fertilizer plant explosion, three federal agencies have issued an advisory on how to store, handle and manage ammonium nitrate (AN) safely. The 19-page advisory from the EPA, OSHA and Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) focuses on high density, solid AN pellets and beads (prills) used in fertilizers, and details lessons learned from previous AN disasters.

OSHA Issues Proposed Rule on Crystalline Silica

The Occupational Safety and Health Administration (OSHA) has released its long-awaited proposed rule that sets new workplace permissible exposure limits (PELs) for respirable crystalline silica, and outlines methods to control exposure, conduct medical exams for workers with high silica exposure, train workers about silica-related hazards, and keep records related to crystalline silica amounts. The proposal includes one exposure limit standard for general industry and maritime employment, and another for construction.

Tracking Patterns of Violations in Mines

In the mining industry MSHA enforcement of “pattern of violations” sanctions can be devastating to a mine operator’s business. Every operator is potentially subject to a “pattern of violations” notice from the U.S. Department of Labor’s Mine Safety and Health Administration (MSHA). Mine records are reviewed by MSHA every year to determine if there is a pattern of violations that could “significantly and substantially contribute to the cause and effect of a mine safety or health hazard.” This terminology from the Federal Mine Safety and Health Act of 1977 is liberally construed to include any violation that an MSHA inspector concludes is “reasonably likely” to cause a reasonably serious injury—even a sprain in some cases.

Supervisor’s Misconduct Alone is Insufficient to Impose Liability under OSHA, Circuit Court Rules

An employer may not be held liable for a violation of the Occupational Safety and Health Act (“OSHA”) based solely on a supervisor’s knowledge of his own misconduct, the U.S. Court of Appeal for the Eleventh Circuit in Atlanta has ruled in a case of first impression for the circuit. ComTran Group v. U.S. Dep’t of Labor, No. 12-10275 (11th Cir. Jul. 24, 2013). Reversing the Occupational Safety and Health Review Commission’s decision that the employer violated OSHA, the Court concluded the Commission erroneously had relieved the Secretary of Labor of her burden to prove the employer’s knowledge of the violation by holding that the supervisor’s knowledge of his own misconduct could be imputed to the employer.

Even When Supervisors Foul Up, OSHA Has to Prove Their Case

Employers are not guilty until proven innocent. Napoleonic justice is not the law of the land. To make out an OSHA citation, OSHA has the burden to prove four (4) elements: an applicable standard, that a hazard existed, an employee was exposed, and that the employer knew, or should have known of the violation.

MSHA Demands for Company Files Upheld by Federal Appellate Court

“Congress has given . . . MSHA powerful tools to protect miners. Those tools include demands to inspect documents.” That is what the United States Court of Appeals for Seventh Circuit recently held in Big Ridge vs. Federal Mine Safety and Health Review Commission.

OSHA’s Comprehensive Silica Proposed Rule Expected Soon

The Occupational Safety and Health Administration’s proposal to comprehensively regulate silica (quartz) in general industry, maritime, and construction is anticipated by Labor Day. Publication of the proposal to extensively regulate one of the most common minerals on Earth, like arsenic and lead, will trigger a public comment period and hearings.

Why Safety Requires Consistent Discipline

An effective safety process requires consistent discipline to support other company safety efforts, but it doesn’t always happen.

Non-Union Employees at Worksite Safety Inspections Contradicts OSHA Regulation and Creates Host of Issues for Employers

With private sector union density steadily declining, unions will take help anywhere they can get it. The most recent case in point: the Occupational Safety and Health Administration (OSHA) issued an interpretation letter on February 21, 2013, stating that non-union employees can select anyone—including outside, non-employee union representatives—to accompany OSHA compliance officers during safety and health inspections of an employer’s work site.

Escalating Enforcement by MSHA of Prohibition against Advance Notice of Inspection

Section 103 of the Federal Mine Safety Act requires the Secretary of Labor to conduct frequent inspections and investigations at mines. It further states: “In carrying out the requirements of this subsection, no advance notice of an inspection shall be provided to any person.” Section 110(e) provides: “Unless otherwise authorized by this Act, any person who gives advance notice of any inspection to be conducted under this Act shall, upon conviction, be punished by [fine, imprisonment, or both].” A recent Senate bill would extend penalties to federal and state inspectors as well as all private persons.

OSHA Opens Worksites to Allow Union Representatives to Participate in Walk-around Inspections of Non-Union Companies

In a new letter of interpretation publically released on April 5, 2013 (originally dated February 5, 2013), the Occupational Safety and Health Administration (OSHA) announced for the first time that during an OSHA inspection of non-union worksites, employees can be represented by anyone selected by the employees including outside union agents.

OSHA Says In A New Interpretation Letter That Outside Union Representatives Can Participate In OSHA Inspections At Non-Union Facilities

website these days, the Agency issued a doozy last month. In an interpretation letter publicly released on April 5, 2013, the U.S. Occupational Safety and Health Administration stated a new interpretation of its regulations that now will permit employees at non-union workplaces to designate non-employees, including “outsider” union officials and/or community representatives (i.e., organizers), as their representatives for what are commonly known as OSHA “walkaround” inspections.

Union Reps Have Access to Non-Union Workplaces During OSHA "Walkaround" Inspections, Agency Says

In an interpretation letter publicly released on April 5, 2013, the U.S. Occupational Safety and Health Administration issued a new interpretation of its regulations that now will permit employees at non-union workplaces to designate non-employees, including “outsider” union officials or community representatives (that is, organizers), as their representatives for what are commonly known as OSHA “walkaround” inspections.

OSHA Sets Sights on Temporary Workers

The Occupational Safety and Health Administration (OSHA) has directed its Compliance Safety and Health Officers (CSHO) to take additional steps during inspections to determine whether employers are adequately protecting temporary workers. Pursuant to a memo issued to OSHA regional administrators, CSHOs are directed to use a new code to document when temporary workers are exposed to health and safety hazards. For this information collection, OSHA will consider “temporary workers” to include those who “work under a host employer/staffing agency employment structure.”

The Heat is On: What Employers Can Do to Protect Employees from Heat-Related Illness

As a cold winter finally comes to an end, many of us look forward to summertime warmth. But while sun and heat may make for a fun day at the beach, they can spell danger for workers who are exposed to soaring temperatures and a rising heat index. According to the Occupational Safety and Health Administration (“OSHA”), thousands of workers in the United States get sick from excessive heat exposure while working outdoors each year and more than 30 workers died in 2012 from heat-related illnesses.

OSHA Interpretation Letter Clarifies Some Safety Responsibilities of Temporary Staffing Agencies and Primary Employers

A recently released Occupational Safety and Health Administration (OSHA) Interpretation Letter outlines the division of responsibility between a temporary staffing agency and the client employer to provide worker safety training, perform hazard communication, and maintain OSHA-related records. Although agency Interpretation letters are limited to the circumstances presented by the person or organization requesting guidance, they shed light on how OSHA would apply its laws and regulations in similar scenarios. The instant Interpretation letter is helpful for any employer that provides temporary personnel to other businesses, as well as one that uses the services of a temporary staffing agency.

Cussing Out Your Employee May Get You Sued...By OSHA?

Hopefully you're already aware of the continuing escalation of all forms of whistleblower and retaliation claims, including under the 20+ Anti-Retaliation laws enforced by special investigators from OSHA's Whistleblower group. If not, check out the Whistleblower Protection Program website.

Employers Have New Weapon Against Stale OSHA Citations

A recent U.S. Supreme Court decision will give employers facing certain Occupational Safety and Health Administration (OSHA) citations a powerful new defense. In a rare unanimous decision issued on February 27, 2013, the Court held that the Securities and Exchange Commission could not take advantage of the “discovery rule” to avoid the statute of limitations applicable to its enforcement action against investment advisors.

MSHA's Still Making Its POV List, But No Longer Checking it Twice

The Mine Safety and Health Administration (MSHA) recently released a Final Rule that significantly changes the way the Agency charged with protecting America’s miners enforces one of its most powerful enforcement tools: pattern of violations (POV).

Avoiding Liability for Work-Related Injuries to Illegal Aliens

Employers are well aware that just one work-related accident or illness can result in medical expenses, rehabilitation services, and liability compensation. A recent Nebraska Supreme Court decision is a reminder that undocumented aliens, as well as legal workers, may bring workers’ compensation claims. In Moyera v. Quality Pork Int’l, 284 Neb. 963 (Jan. 4, 2013), the Nebraska Supreme Court held that the Nebraska Workers’ Compensation Act applies to undocumented aliens and these employees could be entitled to permanent total disability benefits (“PTD benefits”) for work-related injuries. Courts in other states also have found that undocumented employees are covered by their state workers’ compensation systems, including: (1) Florida, (2) Kansas, (3) Kentucky, (4) Maryland, (5) New Jersey, (6) North Carolina, (7) Ohio, (8) Oklahoma, and (9) Pennsylvania. Such liability can be avoided by carefully managing the hiring process to ensure that you do not employ aliens who are not authorized to work.

What to Expect from OSHA in President Obama’s Second Term

As President Barack Obama officially begins his second term in office, it is appropriate to look ahead at what a “second-term” Occupational Safety and Health Administration will mean for employers. To be sure, the future of the Department of Labor is uncertain, with Secretary Hilda Solis stepping down and her successor yet to be named. However, at this time, the leadership at OSHA during the first term of President Obama is still in place. Therefore, at least for now, employers can expect continuity in terms of enforcement and regulatory policy and priorities.

Employment Law Made Un-Scary: OSHA

Everything you need to know about OSHA in one handy post.

OSHA Launches Alternative Dispute Resolution Pilot Program for Whistleblower Complaints

The Occupational Safety and Health Administration has announced that it will begin offering early resolution and mediation instead of investigations in two OSHA regions to address complaints filed with the agency’s Whistleblower Protection Program. OSHA is charged with enforcing the whistleblower provisions in 22 separate statutes, including the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010, Sarbanes-Oxley Act (SOX), Affordable Care Act, and the Occupational Safety and Health (OSH) Act. OSHA reports that it receives approximately 2,500 whistleblower complaints each year.

Getting Off OSHA's "Black List"

After two years of uncertainty, employers have finally been given some guidance on how to be removed from OSHA's Severe Violator Enforcement Program (SVEP). On August 16, 2012, the Directorate of Enforcement Programs (DEP) issued a memorandum detailing the removal criteria for the SVEP, clarifying a process that has not been clear since the implementation of the program in June 2010.

Workplace Safety and Health Reporter Summer 2012

An update on safety and health issues relevant to employers and their worksites.

OSHA Sets Forth Steps Employers Must Take to be Removed From the Severe Violator Enforcement Program

The Occupational Safety and Health Administration (OSHA) has issued a memorandum to its regional administrators informing them of the criteria employers must meet to be removed from the agency's Severe Violator Enforcement Program (SVEP). The SVEP – which took effect in June 2010 – is a program that subjects employers to more significant enforcement measures and penalties for willful, repeat, and failure-to-abate violations of the Occupational Safety and Health (OSH) Act.

OSHA Issues VPP Evaluation Report

The Occupational Safety and Health Administration (OSHA) has released a report (pdf) that evaluates its Voluntary Protection Program (VPP) and makes 34 recommendations for changes and improvement. The report was issued by a VPP Review Team, comprised of OSHA regional and national office members. This team was created in April 2011, and tasked with conducting a review of the VPP and issuing recommendations, largely in response to a critical 2009 Government Accountability Office (GAO) report that called for improved VPP oversight and controls.

MSHA/OSHA Report (August 21, 2012)

MSHA Update; OSHA’s Oil & Gas Flame Resistant Clothing Memo Held to Be Improper Rulemaking; Final Electric Power Transmission and Distribution and Electrical Protective Equipment Rule Goes to OMB.

OSHA Ratchets Up Heat-Related Inspections; Expect State Plans Like Nevada to Follow

Under pressure to respond to the risks to employees created by the nationwide heat wave this summer, the U.S. Occupational Safety and Health Administration (OSHA) recently instructed its field enforcement staff, “to expedite heat-related inspections and to issue citations, where appropriate, as soon as possible.” Heat-related inspections are to occur on days when the National Oceanic and Atmospheric Association (NOAA) issues a heat advisory forecasting a heat index at or above the “danger zone” for a particular area. OSHA investigators have been instructed to determine whether employers are, at the very least, providing employees with adequate access to water, rest periods, and shade. These directions are contained in a Memorandum issued on July 19, 2012 by OSHA’s Director of Enforcement and signed by the agency’s second-in-command, Deputy Assistant Secretary Richard Fairfax.

OSHA's New Heat Safety Tool for Smartphones

Recent record-breaking temperatures in parts of the country are a reminder of the importance of heat safety for outdoor as well as indoor workers, particularly those who perform strenuous job tasks or who are required to wear heavy protective gear. Employees who are new to the job site or are returning from vacation are often more prone to heat-related illnesses since they are not acclimated to the higher temperatures. Effective heat safety programs should include an acclimation period for new or returning workers, frequent water and rest breaks for all workers, and training on the signs and symptoms of heat-related illnesses. It is essential that employees also understand who they should contact within the Company in the event that they are experiencing the signs and symptoms of heat-related stress.

OSHA Whistleblower Protections In Schools

The Labor Department recently strengthened its Occupational Safety and Health Act Whistleblower Program by dedicating additional funds to training its investigators, performing more thorough investigations, and reassigning responsibility for the Whistleblower Program directly to the Office of the Assistant Secretary of Labor for greater oversight of the program. Schools are covered by the OSH Act, and like most industries, should expect to see an increase in whistleblower claims under the newly-fortified program.

OSHA Issues Rule Updating Head Protection Standard

The Occupational Safety and Health Administration (OSHA) has issued a direct final rule and request for comments (pdf) on the agency’s update of its Personal Protective Equipment (PPE) standards related to head protection. Specifically, OSHA is issuing the direct final rule to revise the PPE head protection requirements of its general industry, shipyard employment, longshoring, and marine terminals standards to conform those standards to the requirements recognized in the 2009 edition of the American National Standard for Industrial Head Protection.

Fire Retardant Clothing Is Not, Per Se, Required to Be Worn by Employees in the Oil and Gas Industry

On June 6, 2012, a decision much anticipated by the oil and gas industry was rendered (the Decision). The Decision has clarified whether fire/flame retardant/resistant clothing (FRC) is always required to be worn by workers in the oil and gas drilling, production, and well-servicing industries. The answer is, "No, not always."

DOL Seeks to Gauge Worker Knowledge of Workplace Wage and Safety Rights

The Department of Labor has submitted to the Office of Management and Budget (OMB) a proposed information collection request (ICR) that would determine the degree of employee knowledge concerning their rights governed by the DOL’s Wage and Hour Division (WHD) and Occupational Safety and Health Administration (OSHA).

Top 10 OSHA Citations In The Healthcare Industry, Part 2

Following up on the discussion in our last issue of the Healthcare Update, this month we are examining one of the most rigorous and demanding areas of OSHA compliance – failure to meet the information and training requirements of the Bloodborne Pathogens Standard (BBP).

Mine Operators: No-Fault Liability Extended to Independent Contractors

The District of Columbia Circuit Court of Appeals has ruled that an independent contractor may be held liable for a violation on mine property even if the contractor was not at fault. This unprecedented ruling affirms a decision of the federal Mine Safety Review Commission in Ames Construction, Inc. v. Federal Mine Safety and Health Review Commission and Secretary of Labor.

Employers Need to Be Aware of New Modifications to OSHA's Hazard Communication Standard

On March 26, 2012, OSHA revised its Hazard Communication Standard (“HazCom”), aligning it with the United Nations’ Globally Harmonized System of Classification and Labeling of Chemicals (“GHS”). The revised Standard is intended to help workers better understand chemical hazards in the workplace and to improve safety training related to those hazards. The revisions to the Standard include: (1) changes to the criteria for classifying chemicals according to their hazard level; (2) changes to the labeling system to ensure consistency in labels and Safety Data Sheets; and (3) changes to the training requirements on the new labels and Safety Data Sheets. Non-compliance with the updated Standard can result in OSHA citations and fines.

OSHA Finalizes Major Changes to its Hazard Communication Standard

The Occupational Safety and Health Administration has finalized a rule revising its hazard communication standard to align it with the United Nations’ Globally Harmonized System of Classification and Labeling of Chemicals (GHS). This is one of the agency’s most significant rulemaking efforts in over a decade. The rule, released March 26, 2012, will affect more than 5 million businesses across the country and more than 40 million employees will need to be retrained on hazard communication. OSHA estimates the annualized compliance costs will be more than $200 million for employers. Annualized net monetized benefits are estimated at approximately $550 million.

Senate Hearing Examines Problems with Pace of OSHA Rulemaking

The same day the Government Accountability Office (GAO) released a study finding that it takes an average of nearly 8 years for the Occupational Safety and Health Administration (OSHA) to finalize safety standards, the Senate Committee on Health, Education, Labor and Pensions (HELP) held a hearing to address why this process takes so long. HELP Committee Chairman Tom Harkin (D-IA) began the hearing by claiming that the agency "is broken" and that its rulemaking process is "mired in bureaucracy." Citing the GAO study, Harkin noted that in the 1980s and 1990s OSHA issued 47 safety standards, but has finalized only 11 since that time. OSHA's silica standard, he highlighted, has been in development since 1974. While hearing panelists offered different proposals to solve the rulemaking delay, most agreed that the agency needs to set priorities and focus on those rules instead of continually shifting gears and getting "mired" in its own processes.

New Rules On Chemical Safety Board Investigations

The U.S. Chemical Safety Board (CSB) announced that it has developed a new policy on employee participation in investigations. The Board hopes to greatly expand the role played by employees in determining the root cause of incidents and promoting facility safety as a part of every CSB Investigation. The policy was approved by a unanimous vote of the Board after a roundtable convened by the CSB in 2011 involving accident victims, family members, and employee representatives.

OSHA to Renew Focus on Hazards in Nursing and Residential Care Facilities

The Occupational Safety and Health Administration (OSHA) has announced a new National Emphasis Program (NEP) (pdf) that sets forth the policies and procedures for targeting and addressing occupational illnesses and injuries most commonly experienced in nursing and residential care facilities. As described in the NEP, these hazards include ergonomic stressors relating to resident handling; exposure to blood and other potentially infectious materials; exposure to tuberculosis; workplace violence; and slips, trips, and falls.

OSHA Forecast For 2012: Cloudy With Possible Storms

Strategic changes at the Occupational Safety and Health Review Agency in the last several years have resulted in stricter enforcement, larger penalties, greater compliance requirements and new regulations. This year we expect to see many of the proposed rules and initiatives that OSHA has been pushing make significant progress within the regulatory process, and maybe even come to life.

OSHA Issues a New Guidance Memo on Safety Incentive Programs

In its September 28, 2010 Directive on the Injury and Illness Recordkeeping National Emphasis Program (NEP), OSHA announced its intention to investigate "company policies that may have the effect of discouraging recording on the injury and illness records . . . . "

New OSHA HazCom Rule: What It Means for Employers

The what, when and why of the new OSHA Hazardous Communication standard

OSHA Releases Final Hazard Communication Rule

The Occupational Safety and Health Administration (OSHA) has issued its much-anticipated final rule (pdf) revising the agency’s Hazard Communication Standard (HCS) to better align it with the United Nations' Globally Harmonized System of Classification and Labeling of Chemicals.

The Wait Is Over – OSHA Publishes Final Hazard Communication Standard

In a much anticipated move, on March 20, 2012, the federal Occupational Safety and Health Administration (OSHA) released the final revised Hazard Communication Standard. The final standard will be published in the Federal Register on March 26, 2012, and will become effective, in part, on June 26, 2012, with a built-in transition period and a fully effective date of June 1, 2016.

OSHA's Twin Sister Is In Your Backyard

You would be hard-pressed to find someone who has not heard of OSHA. OSHA's presence is felt by employers across broad segments of American industry, from construction to food service. What many people don't realize, however, is the pervasiveness of OSHA's (older) sister agency, the Mine Safety and Health Administration, or MSHA.

MSHA/OSHA Report (February 2012)

Criminal Conspiracy Charged; OSHA Releases Videos on Respirators;Posting Injury and Illness Summary.

Top 10 OSHA Citations In The Healthcare Industry

Each year the Occupational Safety and Health Administration (OSHA) issues hundreds of citations to employers in the healthcare industry. While medical centers, doctors' offices, and clinics must all comply with a significant number of standards, the citations issued to hospitals remain relatively constant from year to year.

MSHA/OSHA Report (January 2012)

Mine Safety Disclosures Required in SEC Reports; OSHA Issues I2P2 White Paper and Moves Forward with Small Business Review.

OSHA Announces New Focus Areas

The Occupational Safety and Health Administration has recently announced three new focus areas targeting hazards in certain specified work environments. These include: winter storm months, chemical facilities, and formaldehyde exposure in the hair product/salon industry.

Workplace Safety and Health Reporter Winter 2012

An update on safety and health issues relevant to employers and their worksites.

OSHA Provides Warnings and Work Tips for Anticipated Winter Storm Work Hazards

As the winter storm season approaches, the Occupational Safety and Health Administration has focused on protecting workers from hazards during winter storm response and recovery operations. OSHA’s new webpage, entitled “Winter Storms,” provides employers with information on preparing for winter storms and identifying and controlling hazards associated with winter storm conditions.

MSHA/OSHA Report (December 2011)

MSHA Flagrant Violation Policy for $220,000 Penalties Rejected; New Rim Wheel Service Guidance; OSHA Expands National Emphasis Program (NEP) for Hazardous Chemicals.

OSHA Compliance For Restaurants

Restaurants and their trade associations are justifiably proud of their food safety efforts as shown by the July 27, 2011 announcement by the National Restaurant Association celebrating over one million classes of restaurant industry training. But inspections by the Occupational Safety and Health Administration (OSHA) continue to turn up significant shortcomings in restaurant OSHA compliance – and these issues are not limited to the large institutional setting.

Tips For Protecting Your Workers From The Cold

Recent temperatures in the northeast were near record lows, meaning employees working in cold temperatures could face serious health risks. Cold weather is particularly dangerous to employees spending long hours outside, such as construction workers. Prolonged exposure to freezing or cold temperatures can result in serious health problems like trench foot, frostbite, hypothermia, and in extreme cases death. With winter bearing down upon us, it is a good time to familiarize yourself and your employees with the danger signs and important tips to protect them from the cold weather and potentially serious health threats.

MSHA/OSHA Report

Call for Felony Prosecution Power for MSHA Violations; Call for Public Hearings for Accident Investigations – Subpoena Power; OSHA Update - Recordkeeping Enforcement; OSHA Update - BLS Workplace Injury Data for 2010.

MSHA Update - Issues of Fairness with Regular and Special Assessments Review

By law, civil penalties can become final only when approved by the Federal Mine Safety and Health Review Commission. Thus, penalty assessments issued by MSHA are “proposed” only. By a legal fiction, they can become final orders of the Federal Mine Safety and Health Review Commission, if not timely contested. Final penalties are to be based on consideration of six criteria in the Federal Mine Safety and Health Act: 1) history of violations; 2) size of business; 3) negligence; 4) ability to continue in business; 5) gravity; and 6) good faith in abatement. Operator contests typically dispute all or some of these findings.

OSHA 2011 Site-Specific Targeting Directive

Each year, OSHA revises its Site-Specific Targeting Directive based on the previous year’s data relating to workplace injuries and illnesses. OSHA “uses these data to calculate establishment-specific injury/illness rates, and in combination with other data sources, to target enforcement and compliance assistance activities.” Based on the results, locations with higher incident rates are scheduled for comprehensive inspections, including review of OSHA 300 logs for at least three of the past four years.

Incidence Rates of Nonfatal Injuries and Illnesses in Private Sector Continue to Decline

According to information released by the Bureau of Labor Statistics (BLS), the number of reported cases of private sector nonfatal occupational injuries and illnesses that occurred in 2010 declined once again from the prior year, continuing an 8-year trend. The BLS reports that in 2010, 3.5 injury and illness cases per 100 equivalent full-time workers were reported, down from 3.6 per 100 in 2009. The incident rate of injuries incurred only in the private sector remained unchanged between 2009 and 2010, with 3.4 reported cases per 100 full-time employees. Illness-only cases remained relatively unchanged as well. The only private industry sector that experienced an increase in its injury and illness incidence rate was manufacturing, which the BLS attributes to a larger decline in hours worked rather than the corresponding decline in reported injury and illness cases in that sector.

MSHA Update - Civil Penalty Deadlines

There are basically two types of civil penalty deadlines. There is a statutory deadline for operators to file notices of contest challenging the civil penalty and related citation and findings. There is also a deadline under the rules of the Federal Mine Safety and Health Review Commission for the Secretary of Labor (MSHA) to respond to operator contests by filing a petition for assessment of civil penalty with the Commission within 45 days. (The law actually calls for the Secretary to notify the Commission “immediately” upon receipt of an operator contest, but no consequences were established by Congress if this does not happen.)

OSHA Update - Employers as Guardians Against Violence

Earlier this month, OSHA issued Enforcement Procedures for Investigating or Inspecting Workplace Violence Incidents. This new Directive is aimed at providing compliance officers guidance for responding to, and inspecting, allegations and incidents of workplace violence. In conjunction with the Directive, OSHA launched a new webpage focused on preventing workplace violence.

OSHA'S 2011 Site-Specific Targeting Plan

Last week OSHA announced its 2011 Site-Specific Targeting (SST) plan, the Agency's annual inspection program for general industry establishments with high numbers of injuries and illnesses. Whereas prior SSTs included only establishments with 40 or more employees, this year's SST has been expanded to include establishments with as few as 20 employees. The SST does not apply to employers in states with their own state occupational safety and health agency, although state agencies may choose to adopt the federal program in lieu of creating their own. Construction worksites are also excluded from the SST.

Occupational Safety and Health Review Commission Establishes Test for Applying Attorney-Client Privilege to Third-Party Reports

In a case of first impression, the Occupational Safety and Health Review Commission has established a three-part test for employers claiming third-party safety and health audits protected from disclosure by the attorney-client privilege. Applying underlying legal principles of privilege to the technical area of safety and health assessments, the Commission has set forth steps that all employers need to consider taking before conducting any safety and health audits of their operations. The case, Secretary of Labor v. Delek Refining, Ltd., OSHRC No. 09-0844, was decided on July 11, 2011.

Retail Industry - The Injured Worker: Practical Approaches For Avoiding Lawsuits

Retail jobs almost all require certain physical capabilities. These can include physical work such as moving heavy inventory, pushing a mop, bending to assist a customer in getting a product off the bottom shelf, or handling merchandise at the cash register. Employees with physical limitations that prevent them from performing all the functions of their job can be difficult to manage.

MSHA/OSHA Report (August 2011).

Large Rock Leaving Mine After a Blast is Declared an “Accident”; OSHA Update.

MSHA Update

New issues have prompted noteworthy rulings by administrative law judges. While judge’s decisions are not binding precedent, they can influence other judges and are sometimes cited by the Federal Mine Safety and Health Review Commission.

OSHA Update - Draft Proposed I2P2 Regulation Is Expected by Mid-August

As part of the rulemaking process and pursuant to the Small Business Regulatory Enforcement Fairness Act (SBREFA), OSHA will soon convene a panel of small business members to review and comment on a draft of the Injury and Illness Prevention Program (I2P2) regulatory text it anticipates publishing as a proposed rule. The agency recently announced that it expects to provide SBREFA members this draft by mid-August. The I2P2 rule remains one of the agency’s top priorities. Agency officials have indicated that they want to issue a final I2P2 rule in the next four years.

MSHA/OSHA Report (June 2011)

MSHA Enforcement - Document Demands; OSHA Document Demands; OSHA Update - Confined Spaces; OMB Review of Silica Rule Extended; National Survey on Employer Safety and Health Practices; OSHA Takes Aim at the Primary Metals Industry.

MSHA/OSHA Report

MSHA Enforcement Update; OSHA Update - Heat Related Illnesses; I2P2 Remains on OSHA's Agenda for 2011; OSHA Enforcement Update.

OSHA Enforcement Directive on Fall Protection in Residential Construction Effective June 2011

An Occupational Safety and Health Administration (OSHA) compliance directive requiring contractors performing residential construction to comply with the residential fall protection standard will take effect as scheduled on June 16, 2011. The Standard (29 C.F.R. § 1926.501(b)(13), Duty to Have Fall Protection) generally requires that guardrails, safety nets or personal fall arrest systems be used on residential jobsites that are more than six feet off the ground.

MSHA/OSHA Report (April 2011)

MSHA Enforcement – Whose Employees Are These?; OSHA Enforcement.

MSHA/OSHA Report (March 2011).

MSHA Budget—Oversight—Internal Review; Air Contaminant Survey Requirements; Workplace Examinations; OSHA Budget—OSHA Enforcement; New Guidance for PPE.

Crowd Control Tips From OSHA

In 2008, an employee of a major retailer was trampled to death by a stampede of customers surging into the store looking for Black Friday deals. On the same day, two customers in another chain had a shooting match resulting in both dying, although it does not appear to have been a shopping-related incident.

OSHA Moves Ahead with Injury and Illness Prevention Program (I2P2)

No, “I2P2” is not the cute little robot in the Star Wars movies. It is the moniker given by the Occupational Safety and Health Administration to its expected Injury and Illness Prevention Program. The agency is working on new regulatory requirements that may affect nearly every employer. The agency wants employers everywhere to undertake an overarching, programmatic approach to occupational safety and health, a framework for their businesses to incorporate hazard investigation, identification, remediation and prevention into workplace culture. OSHA Administrator Dr. David Michaels describes the program rule as a “risk-based system to address hazards” in which workers will play “an important role.” OSHA, he said, is “trying to get away from [a] ‘catch-me-if-you-can’” approach to dealing with workplace safety and health issues.

Employers Don't Need to Worry About Bedbugs . . . Or Do They?

Bedbug infestations reported recently in major cities, including New York, Detroit and Cincinnati, have again drawn public attention to this growing pestilential nuisance. A casual observer might assume that bedbugs would not concern a human resources professional, in-house counsel or office administrator. He would be wrong. Bedbugs are invading workplaces, too. Offices, retail stores and other establishments have reported their presence. As with any other issue that may affect the workplace, employers need to understand the nature of the problem and their responsibility for addressing it. Left unchecked, it can become the focal point of any number of workplace complaints, grievances and charges.

The Lucky 13.

13 Strategies To Improve Safety, Reduce Exposure, And Improve Profits The new administration's focus at OSHA, and other government agencies, focuses less on compliance and increasingly more on enforcement. That means more inspections, more audits, and more fines. Here are some ways you can help your company stay out of trouble.

OSHA moves forward with new final regulation - Injury and illness recordkeeping for "musculoskeletal disorders" and new 300/300A Forms.

In what some have characterized as a foundational step to returning to OSHA's broad-based ergonomics regulation rejected by Congress in 2001, OSHA has moved forward with its new final regulation for "musculoskeletal disorder" injury and illness recordkeeping, submitted to the White House Office of Management and Budget on July 14, 2010, for projected release by OSHA no later than next month. Under the new regulation, 29 C.F.R. 1904.12, effective January 1, 2011, all covered non-partially exempt employers will be required to record musculoskeletal disorder injuries and illnesses in the new musculoskeletal disorder ("MSD") column added to the OSHA 300 Log and 300A Form.

Mine Safety eAuthority (July 2010).

Miner Safety and Health Act of 2010 Clears Committee on Party-Line Vote – Most Surface Mines and Non-Gassy Metal/Nonmetal Mines Excluded

New Legislation Proposes Sweeping Changes to OSH Act

On July 21, the House Committee on Education and Labor approved the Robert C. Byrd Miner Safety and Health Act of 2010 (H.R. 5663). The name of the bill is misleading, because in addition to addressing mine safety, the bill also proposes comprehensive revisions to the Occupational Safety and Health Act of 1970 (OSH Act).

Miner Act 2010?

The House Education and Labor Committee, chaired by Representative George Miller of California, recently drafted a bill (H.R. 5663) entitled the “Miner Safety and Health Act of 2010.” The measure’s stated purpose is to improve safety compliance, “empower workers to raise safety concerns,” prevent tragedies and establish victims’ rights.

Don't Let OSHA Spoil Your Summer Fun.

As summer approaches, companies begin preparing for morale-building activities such as company-sponsored picnics, amusement park outings and other activities meant to build camaraderie and reduce stress. But employers should remember that any injuries sustained during such company-sponsored activities may need to be recorded on their Occupational Safety and Health Administration (OSHA) injury and illness logs.

Shelter From The Sun: Heat Protection for Employees in Arizona.

Arizona leads the nation in heat-related deaths, nearly all of which occur during the hot summer months. Companies with outdoor workers need to review their policies regarding the protection of workers from the elements.

Federal Government Announces A New Nevada OSHA Office: What This Means To You.

The federal Occupational Safety and Health Administration (OSHA) recently announced that it has, for the first time ever, opened an office in Nevada. The new office, which opened in early May, is located in Las Vegas.

Don't Let Employees Get Hurt As You Dig Out.

In the midst of finding childcare for children unexpectedly home from school, coping with business disruption, power outages, and dangerous streets, we often forget that winter storms, like hurricanes, pose special workplace hazards especially when employers begin to clean up and restore business. Many fatalities, injuries, and OSHA citations occur as employees perform non-routine tasks after the storm eases.

OSHA’s 2009 Site-Specific Targeting Plan.

On July 20, 2009, OSHA announced its new Site-Specific Targeting (SST) Plan for General Industry worksites with 40 or more employees. The SST Plan is OSHA’s primary tool for targeting employers with high numbers of serious injuries and illnesses for on-site inspections. This Plan does not apply to Construction worksites or to states with their own state OSHA agency. The 2009 SST Plan is based on employers’ OSHA 300 Logs and the OSHA 300A Annual Summary information for calendar year 2007.

Retail Industry Update: There's A New Sheriff In Town - President Obama's Enforcement-Driven OSHA.

Throughout his campaign, Sen. Barack Obama continually promised change if he was elected President, and he is now making good on that promise. If you read the safety-activist blogs and media reports, many seem to believe that OSHA is broken and the Obama Administration has to fix it. They cite the decrease in OSHA funding (adjusted for inflation) and a decrease in the number of OSHA inspectors as proof positive that this is not the OSHA that should be.

Disciplining Unsafe Behavior: Cornerstone of an Effective Safety Program.

Regardless of the outcome of the November Presidential election, an emboldened Congress will demand passage of numerous workplace-safety laws already introduced, including the radical Protecting American Workers Act. Observers also expect a shift in OSHA efforts from some cooperative programs to a more punitive and politicized enforcement effort, coupled with the departure of many evenhanded career professionals from OSHA and other agencies. Next to preparation for the possible passage of the Employee Free Choice Act (see Cute Titles for Bad Laws in May, 2008 Labor Letter) no area should receive more employer attention as 2008 comes to an end.

OSHA Form 300A Must Be Posted By February 1, 2008.

Most employers are required under the federal Occupational Safety and Health Act of 1970 to maintain an ongoing record of occupational injuries and illnesses. Employers must use the Occupational Safety and Health Administration’s (OSHA) Form 300, the “Log of Work-Related Injuries and Illnesses” to classify work-related injuries and illnesses. The OSHA Form 300 is also used to note the extent and severity of each case.
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