The Importance of Reporting Workplace Injuries

workplace injury incident report formThere are some OSHA lessons to be learned and things to think about from the recent Third Department case in Silvestri v. New York City Transit Authority, 2017 N.Y Slip Op 06123 (August 10, 2017). In Silvestri, the Third Department affirmed a decision by the Workers’ Compensation Board that the widow of a deceased employee working at the Transit Authority was entitled to benefits because there was substantial evidence that the decedent’s injuries and ensuing death were attributable to an accident that arose out of and in the course of his employment.

The problem was that there were no witnesses to the accident and the employee did not report it. Instead, he went home and told his wife that he had fallen off a ladder and into the “pit” at work. The decedent went to the hospital and was diagnosed with fractured ribs, was given painkillers and sent home. Three days later he went back to the hospital and was diagnosed with a ruptured spleen and a punctured lung and was admitted but died the next day following complications from “blunt impact injuries.”

The court found that testimony of a supervisor that he had witnessed the decedent holding his stomach and indicating that he was not feeling well the day after the accident combined with the declarations of the deceased employee to his wife concerning the accident presented sufficient evidence that the accident occurred in the course of employment. (more…)

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One DOL Drug Testing Rule Officially Gone – Is OSHA Next?

On May 10, the Department of Labor officially nullified a rule passed during the Obama administration that limited states’ ability to require mandatory drug testing for individuals applying for unemployment benefits.

As we covered in an earlier blog, OSHA’s new electronic recordkeeping rule (which is currently the subject of legal challenge) contains anti-retaliation language which OSHA has interpreted as preventing employers, except in limited situations, from implementing mandatory post-accident drug testing.

Although the nullified rule was issued by the Department of Labor Employment and Training Administration, one reading tea leaves might well predict that the principle at play may well extend to OSHA’s retaliation rule soon. (more…)

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The Rise of OSHA Whistle-Blower Cases

construction worker walking alone in vest and hardhatIn the last blog, we took a look data showing a decrease in OSHA workplace safety and health inspections in 2016.  Although this may be true for safety and health inspections, it is certainly not for whistle-blower investigations which continue to rise.  Some may not be aware that OSHA enforces and investigates claims under 22 different federal whistleblowing laws including, among others, Section 11(c) of the OSH Act, the Safe Drinking Water Act, Sarbanes-Oxley, the Surface Transportation Assistance Act and the Consumer Financial Protection Act of 2010.

OSHA continues to be very active in whistle-blowing prosecution including anti-retaliation cases.  Some of these activities include the following press releases:

  • January 14, 2017 – OSHA issues recommended practices to promote workplace anti-retaliation programs
  • December 14, 2016 – OSHA issues final rule establishing procedures for handling retaliation complaints from workers in the automotive industry
  • October 12, 2016 – OSHA issues final rule establishing procedures for handling retaliation complaints under the Affordable Care Act
  • September 16, 2016 – OSHA issues final rule establishing procedures for handling retaliation complaints under the Seaman’s Protection Act
  • September 15, 2016 – OSHA issues new guidance in settlement approval in whistleblower cases
  • August 16, 2016 – OSHA pilots new, expedited whistleblower review process
  • April 18, 2016 – OSHA issues final rule establishing procedures for handling retaliation complaints under the Food Safety Modernization Act

OSHA’s website also shows aggressive prosecution of retaliation cases affecting many different industries.

(more…)

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