Author Archives: Michael Rubin

NEW YORK CITY - SEPTEMBER 3 2015: Republican candidate for president Donald Trump announced he had signed a pledge not to run as an independent candidate should he fail to win the party's nomination in 2016.

OSHA and The Trump Administration: The First 200 Days

Any new presidential administration is likely to bring a new philosophy, vision, and focus to a variety of issues—including workplace safety and health. More than 200 days into the Trump presidency, we take a look below at some of the top developments in OSHA thus far in 2017. OSHA’s Volks Rule Overturned 
The Volks rule—formally the “Clarification of Employer’s Continuing Obligation to Make and Maintain an Accurate Record of Each Recordable Injury and Illness”—was issued on December 19, 2016, during the final days of the…

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OSHA’s Multi-Employer Citation Policy and Construction Sites: Who Is An Employer?

Since OSHA’s mission statement is “to assure safe and healthful working conditions for working men and women,” it’s no surprise that its enforcement authority generally rests with citing employers. The Occupational Safety and Health (OSH) Act requires “each employer” to comply with OSHA standards. Construction is no different—29 CFR 1910.12 obligates each “employer” to protect “employees engaged in construction work” and to comply “with the appropriate standards.” OSHA’s multi-employer citation policy (MECP), however, dictates that up to four separate entities all may be cited—and recognized…

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Preparing for an OSHA Inspection 101

When it comes to OSHA inspections, preparation is critical. Figuring out what to do (and who should do it) only after an inspector arrives on site puts employers at an immediate—and often irreversible—disadvantage. Consider implementing these OSHA inspection best practices now, before a proverbial “knock on the door.” Fourth Amendment Rights Employers—just like people on the street and in their homes—are entitled to Fourth Amendment protection against unreasonable searches and seizures. An OSHA inspector therefore needs one of two things to proceed with an inspection:…

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OSHA Interviews: Understanding and Exercising Your Rights

Section 8(a) of the Occupational Safety and Health (OSH) Act of 1970 authorizes OSHA to inspect workplaces “during regular working hours and at other reasonable times, and within reasonable limits and in a reasonable manner.” While employers have some level of protection since the mandate specifically states the word “reasonable,” more specific rights exist—and should be exercised—at all stages of an OSHA inspection, including before, during, and after the interview process. Basic Interview Rights During an OSHA inspection, one or more of your employees is…

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Congress Overturns OSHA Recordkeeping Rule

On March 1, 2017, the U.S. House of Representatives passed a resolution of disapproval, under the Congressional Review Act, to block OSHA’s “Volks” rule. On March 22, 2017, the Senate followed suit and voted to overturn the rule. Now, the resolution will be forwarded to President Trump to sign, which is expected to occur. The Volks rule—formally the “Clarification of Employer’s Continuing Obligation to Make and Maintain an Accurate Record of Each Recordable Injury and Illness” rule—was issued on December 19, 2016, during the final…

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Does Settling an OSHA Citation Make Good Business Sense?

Shortly after issuing a citation to an employer, OSHA will often agree to reduce the penalty amount provided the employer agrees not to contest it. But could settling invite further trouble? For a number of reasons, contractors should give considerable thought before entering into an early settlement with OSHA. You Need to Move Quickly Upon receipt of a citation, you have three basic options: accept the citation as-issued (this is almost never the best option); request an informal conference and attempt to settle or convince…

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Establish a Strong OSHA Defense Before an Inspector Shows Up

In most instances, an OSHA inspector will arrive at your door unannounced. Among other things, the inspector will present his or her credentials, say why he or she is there, and then ask for your consent to conduct an inspection. The actual inspection and a closing conference will follow, along with the issuance of any citations within six months of any violations. UNPREVENTABLE EMPLOYEE MISCONDUCT DEFENSE Although many procedural and legal defenses may exist to an OSHA citation, one of the most popular and effective…

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OSHA Report Analyzes First Year of New Reporting Requirements

In late 2014, many employers learned about the new OSHA injury and illness reporting requirements that were to go into effect as of Jan. 1, 2015. Under the new requirements, employers were required to report all work-related fatalities within 8 hours, and all in-patient hospitalizations, amputations, and losses of an eye within 24 hours of finding out about the incident. (Under the old rule, employers had the same reporting requirement for fatalities, but were only required to report in-patient hospitalizations of three or more employees

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OSHA Upping the Ante

Employers, get ready. Recent developments show that OSHA will step up its campaign of workplace investigations with measures that pursue an even greater degree of influence on you. In my recent article, “OSHA Ups the Ante in U.S. Workplaces,” I examined the impact on employers of the likely astronomical leap in monetary penalties coming soon to recipients of OSHA violations, the “name and shame” approach taken by the agency against violators, and a new enforcement weighting system — along with practical steps employers…

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OSHA Issues Updated Version of Its Field Operations Manual

Last month, OSHA issued the latest update to its Field Operations Manual (FOM), the most recent update since a prior update in 2009. Significantly, OSHA’s FOM serves as a reference document for OSHA field personnel, providing enforcement policies and procedures relating to OSHA investigations and enforcement proceedings. This nearly 300-page manual contains 16 chapters addressing all aspects of the inspection and enforcement process, including, for example, chapters on “inspection procedures,” “violations,” “penalties and debt collection,” and “post-citation procedures and abatement verification.” In basic terms, the…

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