OSHA’s Increased Penalties and Additional Reasons to Enhance Your Safety Performance

In any major city (and, actually, everywhere), construction is a way of life. Cities continuously expand, renovate, and build.  With more job sites has come more scrutiny and oversight from OSHA. OSHA’s stated mission includes to “assure safe and healthy working conditions for working men and women by setting and enforcing standards.”  When employers fail to abide by those standards, they face penalties – and, in 2019, the maximum penalties again went up. OSHA Penalties In fact, since 2015, the maximum penalty amounts have almost doubled.  This, in large part, was due to the fact that there had been no penalty increases for 25 years (from 1990 to 2015), but then a dramatic increase took place in 2016.  The below chart shows the increases between 2015 and 2017. 2015 2017 ...
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OSHA Eliminates the Requirement for Certain Employers to Electronically Submit Information from Forms 300 and 301 to OSHA

On January 25, 2019, OSHA issued a final rule eliminating the requirement that employers with 250 or more employees electronically submit information from Form 300 (Log of Work-Related Injuries and Illnesses) and Form 301 (Injury and Illness Incident Report) to OSHA each year. These establishments, however, are still required to electronically submit information from Form 300A (Summary of Work-Related Injuries and Illnesses) to OSHA through a secured OSHA website. Collection of calendar year 2018 information from the OSHA Form 300A began on January 2, 2019, and the deadline for electronic submissions is March 2, 2019. OSHA maintains that its final rule will protect sensitive worker information and decrease the burden on employers. The final rule, which becomes effective on February 25, 2019, does not alter an employer’s duty to maintain ...
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Passing the Buck: How Employers in New York State can Escape Liability in Occupational Hearing Loss Claims

It’s an all too common tale for many construction companies doing business in New York state. A unionized worker shows up on one of their job sites. Although the worker has been in the trade for decades, it’s the first time that the company has employed them. The worker is only on the job for a short time frame and subsequently retires. The worker, who began developing occupational hearing loss secondary to exposure to industrial noise decades ago, files a claim for workers’ compensation and submits a supporting medical report entitling them to a six figure schedule loss of use (SLU) award.  Under the current state of the law, the company that last employed the claimant in the industry is liable for all of the claimant’s benefits up front regardless ...
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Element 4 of the Unpreventable Employee Misconduct Defense: Enforcement of Work Rules Through Disciplinary Action When Violations are Discovered

In the final part of this four-part series, we examine the fourth element an employer must establish to successfully raise the “unpreventable employee misconduct” affirmative defense in response to an OSHA citation: that the employer effectively enforces its safety rules upon discovering any violations. Simply stated, this last element requires that an employer discipline its employees for violating any company safety rules. As with the other elements of this affirmative defense, documentation is critical. The fourth element of this defense goes to the very core of the “unpreventable” aspect of the defense. This is so because by disciplining an employee for violating a safety rule, the violation is less likely to occur again in the future. At the same time, the failure to enforce the rule after discovering a violation ...
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Element Three of the Unpreventable Employee Misconduct Defense: Insistence on Compliance and Established Methods of Discovering Violations, Despite Not Knowing About the Subject Violation

In part three of this four-part series addressing the “Unpreventable Employee Misconduct” defense, we will examine the third element an employer must prove to successfully defend against an OSHA citation: that the employer insisted on compliance and had methods of discovering violations of its rules, even though it did not know about the specific violation. Similar to all other elements of this defense, the concept is relatively simple: the employer must insist on safety compliance and have established methods for discovering violations of OSHA violations, even if it did not know about the isolated violation. However, as is the case with element two, proving that 1) the methods and insistence on compliance was performed; and 2) the methods are sufficient for discovering potential violations can be complicated. Without sufficient documentation ...
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Before OSHA Arrives: Developing a Culture of Worksite Safety

In daily business practice, one of the most difficult decisions any company leader can make is to change company culture. Despite many company leaders providing a well-thought out strategic plan, the entire collective of company employees ultimately controls company culture. Therefore, to develop a culture of worksite safety, the key is to follow this basic approach: establish effective worksite safety practices, reflect on trending developments to improve worksite safety practices, and develop an annual strategy to revisit worksite safety practices. But, above all of this, make it more than a simple job “priority” – instead, safety needs to be deeply rooted in your company culture. And, this starts with management leading the way. As with many issues related to OSHA, the best practice is to develop policies and procedures that ...
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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, CSP, Director of Construction Safety at Marley Cooling Tower Co. Convincing management that a safe workplace helps, rather than hinders, the company’s bottom line is an effective way to get management to “buy in” for safety. However, simply stating that the costs of workplace accidents, ...
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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 or illness.  Each section of the Recommended Practices focuses on a core element followed by several action items. The seven core elements are: Management Leadership: Top management commits to eliminating hazards and to continuously improve workplace safety. This commitment, which sets safety program expectations and ...
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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, evidence that the employer consistently enforces legitimate work rules (whether or not an injury or illness is reported) would demonstrate that the employer is serious about creating a culture of safety, not just the appearance of reducing rates. Action taken under a safety incentive program ...
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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 are readily available.  It might just be time for a refresher course on ladder safety. Ice and Snow The weather might be frightful but make sure you have personnel dedicated to regular monitoring of walkways, job sites exposed to the elements, and parking lots.  Remind ...
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