What’s an “establishment” under OSHA?

On July 20, 2018, OSHA published a proposed rule to rescind the requirement for establishments with 250 or more employees to electronically submit information from the OSHA 300 Log and 301 form and added a requirement for covered establishments to include the Employer Identification Number with their submissions. These establishments will continue to be required to submit information from their Form 300A summaries. Public comments are due by September 28. (more…)

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A New Roadmap to Avoid Hefty OSHA Fines for Repeat Violations

The Angelica Textile case had been kicking around OSHA for almost ten years before it was decided by the Occupational Safety and Health Review Commission on June 24th by a 2-1 vote with Commissioner James Sullivan,[1] the newest member of the Commission, casting the deciding vote.  The case provides guidance on how to avoid stiff penalties for repeat violations while emphasizing the proactive steps employers can take to keep their employees safe from recognized hazards.

Before this case was decided, OSHA asserted that in order to meet the “substantial similarity” standard to prove a repeat citation, all it had to show was that the same type of equipment or the same process or the same regulation was involved in the current case and a prior violation at any other company facility.  OSHRC now says that evidence of substantial similarity can be rebutted if the employer demonstrates “disparate conditions and hazards associated with these violations of the same standard.”  A welcome development for businesses.

While that alone is helpful, the Review Commission also opened the door for employers to defend a repeat citation by showing the abatement actions they took.  Here, the Commission is open to more nuanced than the rigid application of any test.  In Angelica Textile’s case, the prior citation identified “critical deficiencies” in the Company’s compliance program.  The Company’s abatement efforts “actively sought out and eliminated similar hazards.”  The new citation involved the same standard, but it did not involve a comprehensive failure.  Rather, the current citation identified only two discrete deficiencies in the Company’s established safety program.  The Company’s procedures, coupled with surveys that had been completed for each machine, and the Secretary’s prior acceptance of the Company’s abatement method, allowed the Commission to conclude that the Company “took affirmative steps to achieve compliance and avoid similar violations in the future.”  That was sufficient to allow the Commission to conclude that a repeat citation was not warranted.

Most businesses that manufacture a product have a history of some minor OSHA violations that no one likely thinks about anymore.  That history could come back to bite.  This issue is more pronounced with businesses with multiple locations.  Since repeat citations now carry a fine of up to $129,336, the Angelica Textile case offers employers a roadmap of actions they can take today to avoid serious fines the next time they have an OSHA inspection at any of their facilities.  Now, Angelica Textile provides potential relief to companies that can demonstrate they implemented strategies to both abates the immediate condition but also implemented protocols to help identify future ones.

Our attorneys have a long history of addressing workplace safety concerns and have helped employers design compliance efforts to avoid having unfortunate events in past history come back to hurt otherwise excellent safety efforts.  They would be happy to consult with your company on how to turn the Angelica Textile case to your advantage the next time OSHA comes to visit.

[1] Prior to joining the Occupational Safety and Health Review Commission, Commissioner Sullivan was a partner with Cozen O’Connor’s Labor and Employment Department and had served as the Chair of the American Bar Association’s Committee on Occupational Safety and Health.

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July 1, 2018 Electronic Submission Deadline

As a reminder to establishments with 250 or more employees that are currently required to keep OSHA injury and illness records and establishments with 20-249 employees that are classified in specific industries with historically high rates of occupational injuries and illnesses that the deadline to electronically submit their 2017 Form, 300A data is July 1, 2018. (more…)

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Top 10 Things to Know About the Occupational Safety and Health Administration (“OSHA”) in the United States

This article was originally written for the Fasken law firm which is based in Canada.  However, it has some helpful reminders about OSHA that I thought worth sharing here.

For Canadian businesses expanding into the United States whether by opening a new facility or a merger and acquisition, there are a whole host of employment law and related issues that need to be considered in the due diligence process including workplace safety and health issues. As a starting point, here are the Top 10 things these businesses should know about OSHA. (more…)

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Top 10 Things To Know About Health And Safety Legal Compliance In Canada

The OSHA Chronicle is pleased to publish the following guest article written by Norman A. Keith, J.D., LL.M. CRSP, a partner at Fasken Martineau DuMoulin LLP who specializes in Canadian workplace safety and health issues.

For American businesses expanding into Canada, whether opening a new facility or acquiring by a merger or acquisition, there are a number of Canadian Occupational Health and Safety (“OHS”) legal compliance requirements. This article provides 10 things that an American or multi-national business needs to know to ensure OHS legal compliance in Canada. (more…)

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The Value of the Non-Recordable Injury / Illness as a Safety Tool

Most employers are required to keep OSHA injury and illness records for each of its covered establishments. To meet these obligations, it is prudent for employers to have well-written policies that require employees to report all workplace injuries and illnesses and to foster a culture that encourages reporting. Indeed, OSHA’s electronic recordkeeping rule specifically prohibits employers from discouraging workers from reporting an injury or illness and requires employers to inform employees of their right to report work-related injuries and illnesses free from retaliation. For example, OSHA would generally consider a policy that requires employees to immediately, without exception, report an injury or illness as retaliatory. (more…)

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OSHA’s Electronic Recordkeeping Rule Revisited

As previously mentioned in this blog, all covered employers under the new electronic recordkeeping regulation were required to electronically file their 2016 300A form by December 30, 2017. As of January 1, 2018, OSHA no longer accepted the 2016 data. During the filing period, OSHA indicated approximately one-third of the establishments that were required to file did not do so. (more…)

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Workplace Violence Fatalities Up in 2016

The Bureau of Labor Statistics recently published workplace fatality statistics for 2016 showing a 7-percent increase from 2015.  Within this increase, workplace violence and other injuries by persons or animals increased 23 percent to become the second-most common fatal event in 2016.  This increase represents an additional 163 cases to 866 in 2016.  Workplace homicides increased by 83 cases to 500 in 2016, and workplace suicides increased by 62 to 291.  This is the highest homicide figure since 2010.  These statistics are a grim reminder that employers need to be proactive about workplace violence issues.  In an earlier blog, we discussed OSHA guidance on workplace violence which can be accessed at: http://oshachronicle.com/2017/06/06/osha-and-workplace-violence

(more…)

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Baby It’s Cold Outside…So Remember OSHA’s Cold Stress Guide

As much of the country is experiencing record low temperatures, it is a good reminder that failing to take appropriate measures to protect employees working in such environments and avoiding other hazards associated with the cold such as preventing slips on snow and ice could provide the basis for a general duty violation under OSHA.  OSHA’s tagline for employers to prevent cold stress-related injuries and illnesses is “Plan, Equip, Train.”  (more…)

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Sexual Harassment and Workplace Safety and Health: An OSHA Issue?

It would not surprise most people to know that OSHA does not have a specific standard governing sexual harassment in the workplace.  However, is there a link between sexual harassment and workplace safety and health issues?  Yes.  For example, sexual harassment could lead to increased stress for the victim which could manifest itself in a number of physical and mental ways.  If the victim is employed in a safety-sensitive position, this might also compromise the employee’s ability to perform the job safely.  Sexual harassment could make victims less likely to report legitimate safety issues or to report accidents particularly if the harasser is part of the reporting process.  Of course, if sexual harassment includes actual or threatened physical conduct, we move into potential workplace violence issues.

Furthermore, although not a strict sexual harassment issue, OSHA has recognized that women in certain industries sometimes have unique safety and health issues.  For example, OSHA has a webpage dedicated to women working in construction which can be accessed at https://www.osha.gov/doc/topics/women/index.html.  In addition, an OSHA Advisory Committee published a Study and Recommendation (“Study”) in 1999 called, “Women in the Construction Workplace: Providing Equitable Safety and Health Protection.”  A copy can be accessed at https://www.osha.gov/doc/accsh/haswicformal.html.

The Study is divided into seven areas where distinct safety and health issues for women have been identified in construction:  workplace culture, sanitary facilities, personal protective equipment, ergonomics, reproductive hazards, health and safety training, and injury and illness data and research. The Study concludes with certain recommendations in each of these areas.  Although the Study is now almost twenty years ago, it remains a good reminder that effective safety and health programs may need to consider gender depending on the work environment.

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