Author Archives: OSHA: Legal Developments and Defense Strategies

The Beryllium Equilibrium: OSHA Schedules Public Hearing on Proposed Rule Intended to Significantly Limit Worker Exposure to Beryllium

The Occupational Safety and Health Administration scheduled a hearing on February 29, 2016 in Washington D.C. to discuss its proposed rule governing occupational exposure limits for beryllium and beryllium compounds.  The proposed rule, which was published on August 7, 2015, would significantly lower workplace exposure to the chemical. OSHA’s present standard permits worker beryllium exposure to 2.0 micrograms per cubic meter of air over eight hours.  This standard was initially implemented by the Atomic Energy Commission in 1948 and later adopted by OSHA in 1971. …

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Whistle While You Work: OSHA Draft Policy Seeks to Prevent Retaliation for Employees Reporting Safety Concerns

On November 6, 2015, OSHA issued a draft policy entitled “Protecting Whistleblowers: Recommended Practices for Employers for Preventing and Addressing Retaliation,” for which it informally seeks public comment through January 19, 2016. The draft policy seeks to facilitate an environment in which employees can freely raise OSHA concerns without the fear of employer retaliation. This whistleblower protection policy specifically focuses on improving safety incentive programs that employers could use in a retaliatory manner against workers who raise such concerns. In its endeavor to create a…

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We Need Your Vote!

Attention blog readers! We are proud to announce that OSHA: Legal Developments and Defense Strategies has been nominated in The Expert Institute’s “2015 Best Legal Blog Contest.” Over the past month, this contest received more than 2,000 nominations and has now narrowed the field to just 250 of the “most exciting, entertaining, and informative legal blogs online today.” This blog is among the 250 finalists and is listed in the “Labor and Employment” category. To vote, visit The Expert Institute’s contest page here  and click…

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Combating Unpredictable Workplace Violence Under OSHA’s General Duty Clause

On August 26, 2015, a Virginia news reporter, Alison Parker, and a photojournalist, Adam Ward, were tragically shot down by a former colleague while conducting a live television broadcast in Moneta, Virginia. The gunman was later confirmed to be a former reporter at the victims’ news station, who was fired for disruptive conduct in 2013. Such acts of workplace violence are senseless and unpredictable, but there are ways to mitigate dangers still. According to OSHA statistics, every year nearly two million Americans report being victims…

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Refusal to Cooperate With OSHA Leads to Federal Criminal Contempt

For what is believed to be the first time in OSHA history, a company recently was found in criminal contempt for refusal to comply with a warrant obtained by OSHA inspectors to conduct an inspection. A Missouri foundry, its owner, and three representatives of an independent safety-consulting company were found in criminal contempt by a federal judge for refusing access to the site by OSHA inspectors. The U.S. District Court in Kansas City ordered Martin Foundry Co., Inc., owner Darrell Stone, and representatives of Compliance…

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OSHA’s Guide To Restroom Access for Transgender Workers

OSHA’s recent publication of its Guide to Restroom Access for Transgender Workers (“Guide”) further forged OSHA’s foray into the spotlight of the hotly prolific LBGT rights discussion. The Guide, which aims to assure that employers provide a safe and healthful working environment for all employees, underscores the principle that “all employees should have access to restrooms that correspond to their gender identity,” according to Dr. David Michaels, Assistant Secretary of Labor for Occupational Safety and Health. Under OSHA’s Sanitation Standard (1910.141), employers are required…

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OSHA Rule Regarding Confined Spaces “Hooked” In Texas

Recently, the Texas Association of Builders (“TAB”) filed a petition in the Fifth Circuit Court of Appeals seeking a review of a newly finalized OSHA rule, which was aimed at reducing confined space risks in construction activities.  The TAB petition potentially hinders the rule’s implementation, delaying years’ worth of the rule’s development by the Bush and Obama Administrations. Specifically, the OSHA final rule conforms construction safety standards with OSHA’s existing confined space regulations for general industry, but contains additional provisions.  For example, the new rule…

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Deadly Incident Shows Importance of Addressing OSHA Citations Regarding Process Safety Management

OSHA recently investigated a DuPont facility after four workers were killed by the release of a lethal gas. OSHA cited DuPont for 11 safety violations and fined them $99,000. Nine of these violations were classified as “serious” (OSHA defines a serious violation as when the workplace hazard could cause an accident or illness that would most likely result in death or serious physical harm), while one was a repeat violation. A DuPont worker was overcome by the release of methyl mercaptan gas after she opened…

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Upstream Oil, Gas Hazards Added to OSHA Severe Violator Program as “High-Emphasis Hazards”

According to a recently issued OSHA memorandum, over twenty years’ worth of statistics show that upstream oil and gas production operations are plagued by fatalities at a rate five to eight times greater than the national average. Based on these alarming statistics, OSHA implemented a new policy under its Severe Violator Enforcement Program (“SVEP”) captured by Instruction CPL 02-00-149 Section XI, which endeavors to curb industry fatalities. The memorandum concerning this new SVEP Section was quietly issued to field officials and attorneys at a recent…

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OSHA Issues Amended Procedures for Handling Retaliation Complaints Under the Sarbanes-Oxley Act

On March 5, 2015, OSHA issued amended procedures for the handling of retaliation complaints under Section 806 of the Sarbanes-Oxley Act of 2002. The amended procedures, now effective, govern employee protection claims. By way of background, on November 3, 2011, an interim final rule (“IFR”) governing these provisions and requesting comment was published in the Federal Register, 76 FR 68084. Pursuant to the IFR, five comments were received. The final rule, 29 C.F.R. Part 1980, “Procedures for Handling of Retaliation Complaints Under Section 806 of…

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