By an order dated December 26, 2024, ALJ Brian Duncan vacated a general duty clause violation against a security company that provided security services to a mall. In the tragic shooting, a customer shot and killed two people, including a mall security guard employed by the company. In vacating the citation, the ALJ made a number of rulings. First, he rejected the notion that the shooter himself (or a specific incident) could serve as the hazardous condition forming the basis of an OSHA citation. However, he ultimately found that the Secretary established a direct nexus between the work of security guards and the general hazard of workplace violence, opining that “violence at the hands of strangers” was considered plausible by both the company and industry experts and that the Secretary established employer recognition of the hazard of general workplace violence. However, the ALJ then provided a detailed analysis of whether the Secretary met her burden of proof when advancing proposed abatement measures and concluded she did not. Specifically, the ALJ rejected the four abatement measures proposed by the Secretary: (1) developing and implementing an effective workplace violence program including the creation of a threat management team; (2) implementing an effective system to identify, track, and communicate issues related to high-risk people of the mall’s firearms prohibition; (3) developing, training security officers on, and enforcing a strict no-approach policy for high-risk situations; and (4) conducting re-training on workplace violence for security officers and supervisors that includes internal and external risk factors for violence in the retail and security industries.
Read MoreOSHA Kicks Off New Year With Final PPE Rule In Construction
Happy New Year!
After approximately a decade of discussing a properly fitting PPE Rule in the construction industry, OSHA’s Final Rule becomes effective January 13, 2025. The Final Rule explicitly requires that PPE is selected to ensure that it “property fits” affected employees.
OSHA’s Safety and Health Tips for the Holiday Season
OSHA’s website recently added advice to employers, particularly in retail and warehousing, to help keep their employees safe this holiday season and linked a video on the Department of Labor’s YouTube page containing nine holiday season safety tips. The tips include: (1) training workers on safety work practices in a language they understand; (2) providing hands-on training for new workers on using equipment safely; (3) ensuring delivery service and warehouse employees wear bright, visible clothing; (4) preventing injuries by properly stacking materials and making sure workers stand clear when doors are opened for unloading; (5) creating a detailed and flexible staffing plan to help reduce workplace stress; (6) implementing an emergency action plan when large crowds are expected; (7) making sure entrance and exit signs are visible; (8) encouraging workers to report safety and health issues; and (9) understanding seasonal workers have the same rights as full-time workers.
Read MoreOSHA Publishes the Top Ten Violations of 2024
Following historical precedent, OSHA’s top ten cited violations for 2024 surprise no one. They all appeared on last year’s list, although their relative positions changed a bit. Fall protection (general requirements) remains the most cited citation and has held the spot for the fourteenth consecutive year.
The full list in order appears below:
Read MoreCalifornia and New York Pass Workplace Violence Laws: Is Federal OSHA Next?
When California’s workplace violence prevention law took effect on July 1, 2024, it joined a handful of other states, including Connecticut, Illinois, Maryland, Minnesota, New Jersey, Oregon, and Washington, that have some type of similar law. On September 4, 2024, Governor Hochul signed into law the New York Retail Worker Safety Act, which is intended to increase safety in the retail industry. Covered New York employers will be required to adopt a workplace violence prevention plan, which must include: (1) a list of factors or situations that may place retail employees at risk of workplace violence; (2) methods to prevent incidents of workplace violence; (3) information on legal provisions regarding violence against retail employees and remedies for victims; and (4) an anti-retaliation statement. Most provisions will take effect on March 1, 2025. New York will also require employee training in areas such as de-escalation techniques, active shooter drills, emergency procedures, and instructions on using security alarms, panic buttons, and other emergency devices. Notably, employers with 500 or more retail employees nationwide will also be required to provide access to panic buttons in the workplace or equip each employee with a wearable or mobile, company-issued panic button by January 1, 2027.
Read MoreOSHA’s New Severe Injury Report Dashboard: More Public Shaming or a Tool to Help Prevent Injuries/Illnesses?
OSHA requires employers to report a fatality or severe injury (“SIR”). Generally, a fatality must be reported within 8 hours, and an in-patient hospitalization, amputation, or eye loss must be reported within 24 hours. Information about the SIR requirement can be found here: https://www.osha.gov/report.
After an SIR is filed, OSHA will normally conduct a formal inspection or request information about the SIR to determine whether further investigation is necessary. If employers receive an information request, it is important that they provide timely and sufficient information to OSHA regarding the root cause of the SIR and abatement efforts to avoid a formal inspection. Although every case is different, it is generally not recommended to simply complete the non-mandatory investigation questionnaire; rather, it is recommended to submit a concise and focused position statement addressing OSHA’s questions and other relevant information to assist OSHA in its assessment.
Read MoreOSHA Opines When Motor Vehicle Injuries Are Work-Related
In a recent standard interpretation dated June 12, 2024, OSHA clarified the circumstances when a motor vehicle injury and fatality would be considered work-related. In doing so, OSHA restated the general principle that injuries that occur when an employee is on travel status are work-related, if, at the time of the injury, the employee was engaged in work activities “in the interest of the employer.” OSHA continued by providing examples of such activities to include travel to and from customer contacts, conducting job tasks, and entertaining or being entertained to transact, discuss, or promote business with the caveat that work-related entertainment only includes entertainment activities engaged in at the direction of the employer.
Read MoreThe Heat is On: A First Look at OSHA’s Proposed Heat Standard
On July 2, 2024, OSHA released its long-awaited national heat illness and injury prevention standard, as predicated in an earlier blog article. It applies to all employers conducting outdoor and indoor work in all general industry, construction, maritime, and agricultural industries with limited exceptions.
Read MoreOSHA Issues Guidance On Whether Musculoskeletal Treatments Are Recordable
In an enforcement memorandum dated May 2, 2024, OSHA provided guidance on whether musculoskeletal injuries are recordable under three treatment scenarios: first aid, Active Release Technique (ART) (massage that targets soft tissues), and exercises and stretching.
In doing so, OSHA reminded employers that the definition of “first aid” set forth in 29 CFR 1904.7(b)(5)(ii) is a comprehensive list of first aid treatments. Any treatment not included on the list is considered medical treatment beyond first aid and, thus, generally meets recording criteria.
OSHA Mid-Year Rulemaking Update
As we head into the midway point of 2024, we wanted to provide a brief update on significant OSHA rulemaking developments.
Heat Stress: OSHA recently took a critical step in implementing its long-awaited heat stress rule by presenting the draft rule’s initial regulatory framework at a meeting of the Advisory Committee on Construction Safety and Health on April 24, 2024. The Committee unanimously recommended OSHA move forward on the Notice of Proposed Rulemaking. It is more likely now that we may see the rule this summer.
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