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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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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