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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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 Initiative came to a conclusion in 2014 as did the SST program in connection with it. The revitalized SST, known as the SST-16, will target three levels of employers: 1) “High Rate Establishments” which may include employers with a high DART rate (days away, restricted ...
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Element Two of the Unpreventable Employee Misconduct Defense: Effective Communication

In part 2 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 (2) was adequate is a different story.  This post will provide with you with the tools to ensure you have two legs to stand on in proving the communication element of the unpreventable employee misconduct defense. One thing to keep in mind at all times: ...
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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 burden of proof on the defense of unpreventable employee misconduct. The employer essentially acknowledges that the conduct/violation occurred as OSHA cited, but then has an opportunity to present evidence that the employee’s conduct could not have been prevented, despite the employer’s efforts to prevent that ...
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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 before that time – was that plans rewarding employees for engaging in certain “behaviors” were permissible and that plans tied to maintaining and/or decreasing injury and illness “rates” were not.  So, for example, an employer incentive program giving workers a bonus for going a month ...
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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 fails to comply with the order, it would consider additional sanctions up to and including incarceration. The court ordered the owner to ensure that employees and contractors use required  safety equipment and fall protection; conduct worksite safety analyses and meetings; employ a “competent person” to ...
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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 workers are unaware of the potential electrical hazards present in their work environment, which makes them more vulnerable to the danger of electrocution. Such hazards include contact with power lines, lack of ground-fault protection, improper use of extension and flexible cords, and equipment not being ...
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ASME B30 — Hoisting Your Crane Safety and Compliance Higher

OSHA will be the first to admit that its safety standards set forth “minimum” safety standards. In the most basic of terms, this means that when it comes to safety more can — and often should (or even must) — be done. This begs the question: What “more” can be done? Ask 10 different safety professionals and you may get 10 different answers—all of which could be right. The general consensus, however, is that a comprehensive health and safety system is needed—complete with management commitment, employee participation, worksite analysis, hazard prevention and control, and training — all with a focus on continuous improvement. However, is there something else, perhaps even more basic and immediately accessible, that could help? The answer to this question is “yes.” Take, for example, those working ...
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OSHA Further Delays Deadline Regarding Crane Operator Certification to 2018

On November 9, 2017, OSHA published a Final Rule further extending by one year the employer duty to ensure the competency of crane operators involved in construction work. Previously, this duty was scheduled to terminate on November 10, 2017, but is now extended to November 10, 2018. OSHA is also further extending the deadline for crane operator certification for one year to November 10, 2018. According to the OSHA press release, the extensions are necessary to provide sufficient time for it to complete related rulemaking to address issues with its existing Cranes and Derricks in Construction standard. In addition, OSHA maintains that many crane operators in the construction industry do not have the certification required by the crane standard and are out of compliance with the standard. This is the ...
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