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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Credibility of Injured Employee Key Consideration in Vacating Citation

A recent decision from the Occupational Safety and Health Review Commission shows the importance credibility of witnesses can play in any contested action. In this recent matter, the Administrative Law Judge (the court) vacated a citation against a telecommunications and electrical utilities company (the company) in view of – in large part – the “untruthful demeanor” of the injured employee and the fact that the employee appeared to have “an ax to grind” with his employer. By way of background, the injured employee filed a complaint with OSHA several months after his accident and only after the company had denied his workers’ compensation claim. An investigation by the company revealed that there had been no potential for electrical injury since there was no power to the box on which the employee ...
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Avoiding OSHA Citations: The Best Defense Is (Also) a Good Offense

In the unfortunate circumstance when an employer receives an OSHA citation, it is comforting to know that numerous procedural and substantive legal defenses exist to limit liability. Of the substantive defenses, one of the most effective is known as the “unpreventable employee misconduct” defense. If successful, it can lead to the outright dismissal of the OSHA citation. While this defense can obviously relieve the immediate headache of the citation, it cannot and should not replace the practice of making worker safety the number-one priority. Indeed, this defense will only be successful if adequate safety practices already existed at the workplace at the time when the citation was issued. In this sense, the unpreventable employee misconduct defense also acts as a template for preemptively establishing a safer workplace. By taking action ...
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