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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OSHA Tweets New Year’s Reporting Resolutions

As of January 1, 2015, OSHA is setting forth new reporting requirements for employers. According to a recent OSHA “Tweet”, employers will be required to report all work-related fatalities within eight hours and all in-patient hospitalizations, amputations and losses of an eye within 24 hours of learning of the aforementioned accidents. Employers are advised that reporting to OSHA may be performed through the OSHA website or by contacting OSHA via telephone. The New Year’s resolution changes the former reporting requirements. Under the “lame duck” requirements in place until January 1, 2015, employers are only required to report all workplace fatalities and instances in which three or more workers were hospitalized in the same incident. Not surprisingly (and notwithstanding OSHA’s newly adopted form of social media communication), an employer’s “tweet” of ...
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OSHA Standards Protect Workers from Exposure to Ebola

Can an employer receive an OSHA citation for failing to protect its employees from exposure to the Ebola virus? Surprisingly, the answer is yes. While most workers in the United States are unlikely to encounter the Ebola virus, workers whose jobs involve healthcare, airline and other transportation operations, cleaning, and environmental services, may be at higher risk for exposure. Under the Occupational Safety and Health Act (“OSH Act”), employers are responsible for ensuring that workers are protected from exposure to the virus. OSHA actually has many standards to choose from when deciding whether or not to issue a citation. OSHA’s Bloodborne Pathogens standard (29 CFR 1910.1030) covers exposure to the Ebola virus. In situations where workers may be exposed to bioaerosols containing the virus, employers must also follow OSHA’s Respiratory ...
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Contesting an OSHA Citation – Some Basics

An OSHA citation usually comes at the worst time. Actually, is there ever a good time? Probably not. But, what if after receiving a citation you realize you do not agree with it? Or, perhaps, you cannot deny that the violative conduct occurred, but you believe certain mitigating factors should be taken into account that might warrant dismissal of the citation or a reduction of the penalty. If these thoughts are coming to mind, you may have a basis to challenge the citation. In order to contest an OSHA citation, there really are only two basic things you need. First, you must have a good faith basis for doing so. Second, you must contest the citation relatively quickly – within 15 working days of your receipt of the citation. (Beware: in view of the short time deadline ...
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OSHA Seeks Input on Updating Chemical Exposure Standards

If you work with or manufacture potentially hazardous chemicals, OSHA wants to hear from you. OSHA has recently launched a national dialogue in an effort to increase the prevention of work-related illness caused by chemicals and hazardous substances. In a YouTube video introducing the initiative, Dr. David Michaels, the Assistant Secretary of Labor for Occupational Safety and Health, commented that “[m]any of our chemical exposure standards are dangerously out of date and do not adequately protect workers.” Dr. Michaels further stated that the process by which these standards are created or updated is “broken” and must be fixed. As part of this dialogue, OSHA has invited public health experts, employers, unions, and chemical manufacturers to provide feedback on updating “permissible exposure limits” or “PELs”. PELs are regulatory limits on the permissible ...
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Tower Talks: DOL, FCC, Telecommunications Industry Join Forces to Prevent Tower Worker Fatalities

In the words of U.S. Secretary of Labor Thomas E. Perez, “[t]he cell phones in our pockets can’t come at the cost of a worker’s life.” On October 14, 2014, the Department of Labor, Federal Communications Commission, and telecommunications industry leaders joined forces to discuss solutions to the surging trend of tragic deaths among cellular phone tower workers. With worker safety in mind, the trifecta established a group dedicated to implementing recommended safety practices after collaborating with entities such as the National Association of Tower Erectors, in an effort to combat tower tragedies. Statistics show that in 2014, to date, there have been 11 fatalities among cell phone tower workers. Given the small number of cell phone tower workers overall (10,000-15,000), cell phone tower workers are considered 10 times more likely to ...
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OSHA Citations on Fall Prevention and Exposure to Excessive Heat Affirmed on Appeal

Two recent court cases upheld citations that were issued for violations of OSHA’s fall protection standard and a willful citation for exposing workers to excessive heat. In September of 2011, OSHA inspectors in Cleveland, Ohio observed a worker performing roof repairs on a church’s steep-pitched roof without any fall protection. An inspection, in turn, resulted in the issuance of “serious” and “repeat” citations to the roofing company for violating OSHA’s fall prevention regulations. In an appeal to the Occupational Safety and Health Review Commission (“OSHRC”), the employer claimed that the worker was not his employee (and, instead, an independent contractor), but the review commission disagreed. Recently, the Sixth Circuit U.S. Court of Appeals upheld the findings of the OSHRC and affirmed OSHA’s citations. In September of 2014, OSHRC Judge Peggy Ball affirmed a general duty clause citation that was issued by OSHA to the ...
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OSHA Announces New Rule for Reporting Severe Injuries

On September 11, 2014, OSHA announced a new final rule requiring employers to notify OSHA when an employee is killed on the job or suffers a work-related hospitalization, amputation or loss of an eye. The rule, which also updates the list of employers partially exempt from OSHA record-keeping requirements, goes into effect on January 1, 2015. Under the rule, employers will be required to notify OSHA of work-related fatalities within eight hours, and work-related in-patient hospitalizations, amputations or losses of an eye within 24 hours. To assist employers in fulfilling these requirements, OSHA is developing a Web Portal for employers to report incidents electronically, in addition to the traditional telephone reporting option. The new rule follows the preliminary results of the 2013 National Census of Fatal Occupational Injuries which found that 4,405 ...
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Comment Period Extended on Proposed Rule to Improve Tracking of Workplace Injuries and Illnesses

OSHA has announced that it will extend the comment period on the proposed rule to improve the tracking of workplace injuries and illnesses to Oct. 14, 2014. The proposal, published on Nov. 8, 2013, would amend OSHA’s recordkeeping regulation to add requirements for the electronic submission of injury and illness information that employers are already required to keep. OSHA is soliciting comments on whether to amend the proposed rule to: 1) require that employers inform their employees of their right to report injuries and illnesses; 2) more clearly communicate that any injury and illness reporting requirements established by the employer must be reasonable and not unduly burdensome; and 3) provide OSHA with additional means to prohibit employers from retaliating against employees for reporting injuries and illnesses. Individuals interested in submitting comments may ...
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