OSHA’s Burden of Proof and Contesting the “Knowledge” Element

In order to establish a violation in any case, OSHA must prove the following four elements: (1) the cited standard applies; (2) the employer failed to comply with the standard; (3) employees had access to the violative condition; and (4) the employer knew, or with the exercise of reasonable diligence, could have known of the violative condition. A recent decision from the Occupational Safety and Health Review Commission (OSHRC) (March 7, 2014, Docket No. 12-2152), provides an opportunity to discuss the fourth element, the “knowledge” element. Briefly, in this case, the general contractor was issued a citation for permitting two employees to perform work from an aerial lift without being tied off at a school renovation project. The contractor conceded that OSHA had established the first three elements, but contested the fourth ...
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The Informal Conference: To Settle or Not To Settle

An important right upon receipt of an OSHA citation is to request an informal conference with the OSHA area director. Notably, an informal conference must be held within 15 working days of your receipt of the citation. (This is the same deadline as for contesting the citation. It is also important to keep in mind that requesting and/or appearing at an informal conference will not extend the time you have to contest the citation.) Informal conferences are popular and may be extremely useful because they present an opportunity at an early stage of the process to negotiate a penalty reduction, extension of abatement dates, deletion of violations, and/or reclassification of violations. Reclassification of a violation to a less severe violation can impact not only on the amount you currently pay ...
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OSHA Emphasizes Safe Patient Handling Programs for Healthcare Workers

Nurses and other healthcare workers face many safety and health hazards in their work environments. In fact, healthcare workers experience some of the highest rates of non-fatal occupational injuries and illnesses of any industry sector. In 2012, injuries and illnesses reported for nursing and residential care workers were significantly higher than those in construction, and 2-3 times higher than in retail or manufacturing. Almost half of the injuries and illnesses reported for nurses and nursing support staffs were musculoskeletal disorders (MSDs).  Reducing the number of MSDs in healthcare workers is a priority for OSHA. The agency revised its Guidelines for Nursing Homes, Ergonomics for the Prevention of Musculoskeletal Disorders and launched an educational outreach and enforcement program to address hazards specific to nursing homes. OSHA promotes a safety culture of prevention of harm for both ...
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OSHA Related News for April

D.C. Circuit Court upholds OSHA’s position in SeaWorld case. Real estate development and management company fined more than $2.3 million for knowingly exposing workers to asbestos and lead at NY work site. Railway ordered to pay $352,000 in back wages, compensatory damages, and punitive damages for terminating injured conductor who reported workplace injury. Final rule published to improve workplace safety and health for workers performing electric power generation, transmission and distribution work. OSHA urges employers to prevent texting while driving and refers employers to its distracted driving page. Covered employers are required to post OSHA 300A injury/illness summaries by April 30th.
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Exploring the Limits of OSHA’s Inspection Authority: A Precursor to Exercising Your Rights

If an OSHA inspector, known as a compliance safety and health officer (CSHO), arrives at your door, presents his or her credentials, and asks for you to consent to an inspection of your workplace, what do you do? If you consent, what should you expect to happen next? And if you refuse to consent, then what? Obviously it would be wishful thinking to conclude that the CSHO would simply leave, bid you good day and never come back. These rather elementary questions are among the many questions you will need to answer before, during, and after an OSHA inspection. In order to answer these questions in the face of an OSHA inspection in an informed, prudent manner, it is critical to have an understanding of the limits of OSHA’s inspection authority ...
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OSHA Announces National Stand-Down for Fall Prevention

OSHA has announced a national safety stand-down from June 2 to June 6, 2014 to raise awareness about the hazards of falls, which account for the highest number of deaths in the construction industry. In order to conduct a safety stand-down, a construction company should stop working at a specific designated time and provide a focused toolbox talk on a safety topic such as ladder safety, fall protection equipment, or scaffolds safety. The purpose of the meeting is to provide information to workers about hazards, protective methods, and the company’s safety policies, goals, and expectations. “Falls account for more than a third of all deaths in this industry,” said Dr. David Michaels, assistant secretary of labor for occupational safety and health. “We’re working with employers, workers, industry groups, state OSH plans, and civic and faith-based ...
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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. The Department of Labor is reporting that since 2009 the number of new whistleblower cases has grown by 37 percent. The Federal government has responded to this increase by providing additional resources in the fiscal 2015 budget. With these funds, OSHA plans on hiring additional whistleblower investigators, and other employees who will handle OSHA’s training, statistical analysis, IT development and auditing functions. Reporting injuries is a protected activity and a basic worker right under the Occupational Safety and Health Act of 1970. OSHA believes ...
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OSHA to Pay Special Attention to Accidents Involving Communication Tower Workers

A recent communications tower collapse in West Virginia resulted in the deaths of two tower workers, as well as a firefighter who died while responding to the incident. These deaths are part of a sharp rise in fatalities in this industry. In fact, more communication tower workers were killed in 2013 than in the previous two years combined. According to Assistant Secretary of Labor for OSHA Dr. David Michaels, OSHA is very concerned about the sharp rise in deaths and is going to increase its enforcement in the industry. Dr. Michaels recently spoke at the 2014 National Association of Tower Erectors conference and indicated that workers in the communications tower industry face a risk of fatal injury that is perhaps 25 to 30 times higher than the risk for the average American worker. According to ...
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Six Practical Tips for Minimizing OSHA Liability

As many employers know, OSHA penalties can be costly. Some employers, however, never even receive an OSHA citation. Why is this? Is it luck? Or is it because the employer implemented well-thought and planned systems and strategies specifically designed to promote the health and safety of its workers? In my recent article in Industry Week, I assert that it is likely the later – and provide six practical tips and strategies that employers in virtually any industry may implement. These strategies include: perform a self-assessment; create and implement an effective safety and health program; be prepared for an inspection; know your rights and the process; evaluate potential defenses; and take advantage of OSHA programs. A complete copy of the article, “Minimizing OSHA Liability Through (More Than) an Ounce of Prevention,” can be found here.
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Labor Department Sues Ohio Bell for Suspending Workers Who Reported Workplace Injuries

OSHA has accused the Ohio Bell Telephone Company (“Ohio Bell”), which operates as AT&T, of suspending workers for reporting their various workplace injuries, including in two instances related to ladder accidents. “It is against the law for employers to discipline or suspend employees for reporting injuries,” said Dr. David Michaels, assistant secretary of labor for occupational safety and health. “AT&T must understand that by discouraging workers from reporting injuries, it increases the likelihood of more workers being injured in the future.” The lawsuit, brought by the U.S. Department of Labor, alleges that in 13 separate incidents from 2011 to 2013, Ohio Bell employees were disciplined and given one- to three-day unpaid suspensions for reporting their injuries. Ohio Bell claimed that each employee violated a corporate workplace safety standard; however, OSHA’s investigation found that the suspensions were a result ...
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