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 the Sarbanes-Oxley Act of 2002, as Amended,” responded to the comments and established the final procedures and time frames for the handling of retaliation complaints, including regarding employee complaints to OSHA, OSHA investigations, appeals of OSHA determinations to an administrative law judge (“ALJ”) for a hearing de novo, hearings by ...
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Lead Exposure Brings $287,440 in Fines from OSHA

Lead exposure can cause long term damage to the central nervous system, urinary, blood and reproductive systems. Without proper protection, employees who encounter lead in the work place can bring this toxic metal home on their clothes, hair and hands. Family members, including pregnant women and children, are put at risk for lead poisoning as a result. Employees of Chicago-based Era Valdivia Contractors, Inc. and their families were exposed to dangerous lead hazards while workers were sandblasting the steel structure of the Francisco Avenue Bridge without personal protective equipment. OSHA initiated an inspection of the company under the National Emphasis Program for Lead. “OSHA’s investigation found that the company had performed tests that indicated dangerous lead exposure in the early stages of the project. The company made a conscious decision ...
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OSHA Citations Vacated Due to Consumer Products Exception

In a recent decision, the Occupational Safety and Health Review Commission (OSHRC) vacated two citations against a construction company relating to portable fire extinguishers kept at a jobsite. The first citation was for failing to include the extinguishers in its hazard communication program. The second was for failing to provide material safety data sheets for the chemicals contained in the extinguishers. The fire extinguishers at issue were ABC rated and weighed10 pounds each. Between 8 and 10 extinguishers were kept at the jobsite. It was not disputed that the extinguishers contained at least one active hazardous chemical. Although the construction company was headquartered in Minnesota, the citations were issued at a jobsite in Kentucky where the company was the general contractor. At a hearing regarding the citations, the main issue ...
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OSHA Fines Contractor $511,000 for Failing to Provide Fall Protection Resulting in Worker Fatality

On July 25, 2014, a 22-year-old apprentice ironworker in Kansas City, Missouri was standing on a 9-inch-wide steel girder on a building under construction and fell more than 30 feet to his death. In its citation dated January 21, 2015, OSHA cited the employer structural steel company for seven willful and three serious safety violations, placed the company in the Severe Violator Enforcement Program, and issued proposed penalties against the company totaling $511,000. OSHA’s investigation found that the deceased worker’s employer violated its own safety manual and its contract with the project’s general contractor, which required employees working higher than 6 feet from the ground to be provided with adequate fall protection. Specifically, the citation notes that the worker “was required and/or permitted to climb the open web steel trusses/joists, ...
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OSHA: Hospital Workers Exposed to Contaminated Laundry

OSHA has cited a New York City hospital after an investigation found workers were exposed to laundry contaminated with blood, bodily fluids, and other infectious materials. Approximately one year ago, the Manhattan hospital allegedly replaced linen laundry bags with thin plastic bags that broke, exposing workers to health hazards. Clothing, sheets, towels and other soiled laundry spewed onto the floor of the basement when bags broke or failed to stay closed as they came down laundry chutes. Employees were further exposed as they gathered and repacked the laundry. OSHA cited the hospital with 13 willful, serious and health standard violations and proposed $201,000 in fines. “Management knew that these bags were deficient yet continued using them, even though they posed a potential health hazard for employees. This must change,” said ...
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The Right to Delay an OSHA Inspection Until Management Arrives

Chapter 3 of OSHA’s Field Operations Manual (“FOM”) governs OSHA Inspection Procedures, which encompasses many aspects of an inspection including preparation, planning, documentation, and notice. The “conduct of inspection” guideline indicates that the OSHA inspector must locate the owner, operator or agent in charge at the workplace prior to commencing the inspection. In that regard, the FOM provides that “when neither the person in charge nor a management official is present, contact may be made with the employer to request the presence of the owner, operator or management official.” The guideline posits that the inspector should not be reasonably delayed due to the absence of a management official, for instance, for any duration over one hour. In the event that a management official cannot be determined, then the inspector is directed to record ...
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OSHA Orders Employer to Reinstate Whistleblower and Pay More Than $166,000 in Damages

On July 30, 2013, a pilot refused to fly a medical transport helicopter over mountainous terrain due to a faulty emergency locator transmitter. The employee was placed on administrative leave the next day and was eventually terminated on August 5, 2013. This termination was reported to OSHA and an investigation followed. OSHA found that the pilot’s employer terminated the employee in retaliation for refusing to fly the helicopter. OSHA not only ordered that the pilot be reinstated, but also levied fines totaling $158,000 in back wages, as well as $8,500 in damages. The employer also had to remove disciplinary information from the employee’s personnel file and provide whistleblower rights information to all employees. OSHA’s regional administrator, Nick Walters, stated that “[P]ilots should never have to choose between the safety of ...
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OSHA Form 300A Posting Period to Commence Feb. 1

  Employers with more than ten employees and whose establishments are not classified as a partially exempt industry must record work-related injuries and illnesses using OSHA Forms 300, 300A and 301. From Februay through April, these covered employers are required to post OSHA Form 300A, which summarizes the total number of job-related injuries and illnesses that occurred during 2014 and were logged on OSHA’s Form 300 (the log of work-related injuries and illnesses). The summary must be posted between Feb. 1 and April 30, 2015, and should be displayed in a common area where notices to employees are usually posted. Employers with 10 or fewer employees and employers in specific low-hazard industries, such as retail, service, finance, insurance, and real estate industries, are normally exempt from federal OSHA injury and illness recordkeeping and ...
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OSHA Reporting Requirements for Fatalities and Injuries Simplified

Under the OSHA reporting requirements for work-related injuries and fatalities (effective Jan. 1, 2015), employers are 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. The following are the three ways to report any work-related injuries and/or fatalities to OSHA: (1) call 1-800-321-OSHA (6742); (2) call your nearest OSHA area office during normal business hours; or (3) use the OSHA electronic reporting (online) form, available soon.
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Focusing on Safety (and Potential Recognition) with OSHA’s On-Site Consultation Program

If you are a small or medium-sized business and want to know how you are doing in terms of safety, one option is to simply ask OSHA by participating in its voluntary On-site Consultation Program. If you elect to participate in this program, a consultant will work with you to identify workplace hazards, provide advice on compliance with OSHA standards, and assist in establishing injury and illness prevention programs. On-site Consultation services are confidential, separate from enforcement, and do not result in penalties or citations. One caveat, however, is that you will be required to correct any serious job safety and health hazards that are identified through participation in the program. A directory with Consultation Program contact information can be found here. Although you may elect to limit the scope of the consulation services to ...
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