Author Archives: Michael Rubin

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…

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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…

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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,…

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Minimizing OSHA Liability : More Than an Ounce of Prevention

OSHA penalties can be costly. In fact, a single “repeat” or “willful” violation can result in a penalty of $126,749. And, if you have multiple violations, that number can increase significantly. This article addresses measures any employer can implement to minimize the risk of costly penalties while—at the same time—promote the most important goal which is to provide a safe work environment for employees. Perform a Self-Assessment
The first step is to take an in-depth look at your organization and assess how you are doing…

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OSHA and The Trump Administration: The First 200 Days

Any new presidential administration is likely to bring a new philosophy, vision, and focus to a variety of issues—including workplace safety and health. More than 200 days into the Trump presidency, we take a look below at some of the top developments in OSHA thus far in 2017. OSHA’s Volks Rule Overturned 
The Volks rule—formally the “Clarification of Employer’s Continuing Obligation to Make and Maintain an Accurate Record of Each Recordable Injury and Illness”—was issued on December 19, 2016, during the final days of the…

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OSHA’s Multi-Employer Citation Policy and Construction Sites: Who Is An Employer?

Since OSHA’s mission statement is “to assure safe and healthful working conditions for working men and women,” it’s no surprise that its enforcement authority generally rests with citing employers. The Occupational Safety and Health (OSH) Act requires “each employer” to comply with OSHA standards. Construction is no different—29 CFR 1910.12 obligates each “employer” to protect “employees engaged in construction work” and to comply “with the appropriate standards.” OSHA’s multi-employer citation policy (MECP), however, dictates that up to four separate entities all may be cited—and recognized…

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Preparing for an OSHA Inspection 101

When it comes to OSHA inspections, preparation is critical. Figuring out what to do (and who should do it) only after an inspector arrives on site puts employers at an immediate—and often irreversible—disadvantage. Consider implementing these OSHA inspection best practices now, before a proverbial “knock on the door.” Fourth Amendment Rights Employers—just like people on the street and in their homes—are entitled to Fourth Amendment protection against unreasonable searches and seizures. An OSHA inspector therefore needs one of two things to proceed with an inspection:…

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OSHA Interviews: Understanding and Exercising Your Rights

Section 8(a) of the Occupational Safety and Health (OSH) Act of 1970 authorizes OSHA to inspect workplaces “during regular working hours and at other reasonable times, and within reasonable limits and in a reasonable manner.” While employers have some level of protection since the mandate specifically states the word “reasonable,” more specific rights exist—and should be exercised—at all stages of an OSHA inspection, including before, during, and after the interview process. Basic Interview Rights During an OSHA inspection, one or more of your employees is…

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Congress Overturns OSHA Recordkeeping Rule

On March 1, 2017, the U.S. House of Representatives passed a resolution of disapproval, under the Congressional Review Act, to block OSHA’s “Volks” rule. On March 22, 2017, the Senate followed suit and voted to overturn the rule. Now, the resolution will be forwarded to President Trump to sign, which is expected to occur. The Volks rule—formally the “Clarification of Employer’s Continuing Obligation to Make and Maintain an Accurate Record of Each Recordable Injury and Illness” rule—was issued on December 19, 2016, during the final…

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Does Settling an OSHA Citation Make Good Business Sense?

Shortly after issuing a citation to an employer, OSHA will often agree to reduce the penalty amount provided the employer agrees not to contest it. But could settling invite further trouble? For a number of reasons, contractors should give considerable thought before entering into an early settlement with OSHA. You Need to Move Quickly Upon receipt of a citation, you have three basic options: accept the citation as-issued (this is almost never the best option); request an informal conference and attempt to settle or convince…

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