How to get Management to “Buy In” for Safety

To get the attention of CEO’s and upper level management, one must focus the conversation on the company’s bottom line. Often times, discussions of workplace safety involve conversations about increased expenses and red tape. However, the struggle to promote the need for additional workplace safety can be made easier if the conversation is focused on terms that CEO’s and management understand and are excited to implement. CEO’s and upper level management “relate to dollars and cents. They don’t relate to incident rates,” says Terry Hart,…
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OSHA’s Recommended Practices For Safety And Health Programs In Construction: A Step-By-Step Approach To Implementing A Safety And Health Program

OSHA publishes a set of recommended practices for safety and health programs to help employers establish a methodical approach to improving safety and health in their workplaces. OSHA’s Recommended Practices for Safety and Health Programs in Construction (Construction Practices) has been updated to account for changes since the document was first published – over 30 years ago – taking into consideration, greater technology and more diversity among workers. The focus of the Construction Practices is on finding and fixing hazards before they can cause injury…
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Post Incident Drug Testing

On May 12, 2016, OSHA caused confusion and concern amongst employers in the preamble to 29 C.F.R. § 1904.35(b)(1)(iv) reporting requirements. The preamble appeared a prohibition, at the very least discouragement, of post-incident drug testing or policies. On October 11, 2018, OSHA provided a memorandum to clarify the Department’s position on post-incident drug testing. In particular, OSHA advises that [t]he Department believes that many employers who implement safety incentive programs and/or conduct post-incident drug testing do so to promote workplace safety and health. In addition,…
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It’s a Wonderful Time of Year! Let’s Keep it That Way!

Holiday plates overflow, we are more stressed, tired, rushed, and a little inclined to cut corners and bend a few rules.  Although there tend to be fewer work accidents this time of year, it is no time to ignore those basic practices we rely on all year round to ensure those around us make it home safely to enjoy the holiday. Ladders Hang the stockings with care. Don’t climb on chairs or other furniture to display your holiday decorations. Make sure step stools and ladders…
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OSHA Restores the Site Specific Targeting Program Based on E-Filing

OSHA reinstated the Site Specific Targeting Program (SST) effective October 16, 2018. The SST, OSHA’s main site-specific targeting inspection plan for non-construction workplaces that have 20 or more employees, will be based on the 300A data associated with a 2017 rule published by the US Department of Labor, requiring certain employers to publicly E-File injury and illness data, beginning in calendar year 2016. Prior to 2014, OSHA’s SST program was based on information collected in connection with the OSHA Data Initiative (ODI). The OSHA Data…
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Element Two of the Unpreventable Employee Misconduct Defense: Effective Communication

In part two of this four-part series addressing the “unpreventable employee misconduct” defense, we will examine the second element an employer must prove to successfully defend against an OSHA citation: that the employer effectively communicated a rule, which, if followed, would have prevented the violation. The idea behind this element is simple: the employer must be able to show that the employee whose conduct was in violation of the rule had previously been told about the rule. However, proving that the communication (1) occurred and…
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Unpreventable Employee Misconduct: Defending Your Company when there is No Defense to the Conduct

What if one or your workers – who should and does know better – violates an OSHA standard?  Shouldn’t an employer be able to defend itself from the violation even when there is no dispute that the underlying conduct occurred? The answer is yes, provided the four elements of the “unpreventable employee misconduct” defense are met. Unpreventable employee misconduct, an affirmative defense, is often raised by employers in OSHA enforcement actions. Thus, while OSHA bears the burden of proving a violation, the employer bears the…
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OSHA Relaxes Position regarding Safety Incentive Programs and Post-Incident Drug Screening

On October 11, 2018, OSHA issued a Memorandum (the Memorandum) ostensibly clarifying its position on post-accident drug testing and employee incentive programs.  Any fair reading of the Memorandum, however, shows that OSHA is actually doing a lot more than simply “clarifying” its position – in some respects, it is completely reversing course.  This is especially true with respect to safety incentive programs.  And employers should take note. Safety Incentive Plans OSHA’s “old” position on safety incentive plans – since at least 2016, and actually well…
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U.S. Court of Appeals Orders Roofing Contractor to Correct Violations, Implement Safety Measures and Address Approximately $400,000 in Fines

OSHA investigated a Maine roofing contractor multiple time over an eleven year period and issued citations totaling $389,685 in fines for repeatedly exposing its employees to fall hazards. In 2011, the United States Court of Appeals for the Second Circuit ordered the contractor to implement a comprehensive safety and training program. It also ordered the owner of the company to produce substantial documentation that will demonstrate the extent to which he is able to pay the fines. Notably, the court indicated that if the owner…
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OSHA and Hazard Assessments: Electrical Hazards in the Workplace

OSHA requires that employers “instruct each employee in the recognition and avoidance of unsafe conditions” and the regulations applicable to the workplace “to control or eliminate any hazards or other exposure to illness or injury.” This broad directive underscores the necessity of conducting a hazard assessment—determining the hazards present in the work environment. Indeed, one of the “root causes” of workplace incidents is the failure to identify or recognize hazards that are present, or that could have been anticipated. Take, for example, electrical hazards. Many…
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