National Institute for Occupational Safety and Health Issues Guidebook on Protecting Temporary Workers

The use of “leased” employees continues to skyrocket. Between 1992 and 2017, it is estimated that the number of people working for employee leasing firms increased 682%, from 341,884 to 2.7 million. There are a variety of reasons companies use leased employees. However, host businesses should be aware that even though they are not the “employer” of record, they still have safety and health obligations under OSHA. Under OSHA’s Multi-Employer Citation Policy, CPL 2-0.124 (the “Multi-Employer Policy”), more than one employer may be citable for a hazardous condition that violates an OSHA standard in certain circumstances, including an employer that exposes an employee to the hazard. This is an important reminder because, under normal circumstances, leased employees may not be provided the same level of training as a host company’s employees.

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Strategic Considerations When Producing Documents During An OSHA Inspection

During an OSHA inspection, the compliance officer will most likely request certain documents such as the manufacturer’s manual, safety and health policies, internal or external safety and health audits, videotapes, minutes from safety meetings, trade association data, employee complaints, etc. Initially, the employer representative should ensure that all document requests are memorialized in writing so there is no confusion as to what is requested. When responding to these document requests, employers need to be mindful of potential privileges, e.g., attorney-client privilege covering an internal safety audit so that they are not waived unintentionally. Employers also need to be vigilant in protecting any documents containing trade secrets, commercially sensitive or other confidential financial information.

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Is a General Contractor Liable for Safety Violations of its Subcontractors under OSHA?

The short answer is the proverbial attorney response, “it depends.” Under OSHA’s multi-employer citation policy, an employer may be held responsible for the violations of other employers where it could reasonably be expected to prevent or detect and abate the violations due to its supervisory authority and control over the worksite. In Secretary of Labor v. Summit Contracting Group, OSHRC Docket No. 18-1451 (May 10, 2022), the two-member Commission determined that the 11th Circuit has never explicitly adopted or rejected the multi-employer doctrine, and thus applied Commission precedent to the circumstances of the case. After doing so, the Commission ultimately reversed the administrative law judge’s decision and vacated a fall protection citation issued against a general contractor for the failure of its subcontractor’s employees to use fall protection.

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Is There Personal Liability For OSHA Penalties?

Normally, OSHA citations are issued only against the corporations which employ workers, not the individuals who own or control them. Thus, corporate entities are generally liable for penalties under the Occupational Safety and Health Act (“Act”) as opposed to supervisors, officers, or directors. Moreover, there is no statutory authority to extend liability under the Act to supervisors, officers or directors individually. However, under the traditional common law doctrine of “piercing the corporate veil,” a court may put aside limited liability and hold officers or directors personally liable for the corporation’s actions or debts. Although the standard may differ from court to court, it typically requires somewhat egregious conduct to justify piercing the corporate veil. 

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When are Injuries from a Motor Vehicle Accident Recordable Under OSHA?

It is well-established that injuries and illnesses, such as those sustained in a motor vehicle accident that occurs during an employee’s normal commute time from home to work, are not work-related and thus not recordable under Part 1904. The reasoning is that an employee traveling during their normal commute time between home and work is not in the “work environment,” nor is the employee performing work activity in the “interest of the employer. Instead, the commute time is non-work-related-activity that is within the personal control of the employee.

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Supreme Court Reinstates Stay of OSHA’s ETS

Not surprisingly, particularly after a recent oral argument on January 7, 2022, the Supreme Court reinstated the national stay of OSHA’s ETS today. In doing so, the Court found that the petitioners were “likely to succeed on the merits.” As also expected, Justices Kagan, Sotomayor, and Breyer dissented from the decision. Many practitioners, including the co-authors of this blog, questioned OSHA’s authority to issue the ETS for reasons discussed in prior blogs.  

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March 2nd Deadline to Electronically Submit 300A

The start of the New Year serves as a good reminder to covered employers that they must electronically submit 300A data on or before March 2, 2022, for the calendar year 2021. Covered employers include those with 250 or more employees. They are currently required to keep OSHA injury and illness records and those with 20 to 249 employees and classified in specific industries with historically high rates of occupational injuries and illness. A list of these industries can be found here.

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OSHA Withdraws COVID ETS for Healthcare

On December 27, OSHA announced it is allowing its ETS for healthcare facilities to sunset but that it would continue to work expeditiously to promulgate a permanent standard for coronavirus-related hazards.  In its statement, OSHA formally withdrew the non-recordkeeping portions of the ETS, however, stated that the recordkeeping requirements for employers covered under that separate rule which require them to maintain logs of all employee COVID cases regardless of whether they are considered work-related or not would remain in effect.  In addition, healthcare facilities must continue to affirmatively report COVID work-related inpatient hospitalizations within 24 hours and fatalities within 8 hours. 

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Sixth Circuit Lifts OSHA ETS Stay

Last night, the Sixth Circuit lifted the Fifth Circuit’s national stay on OSHA’s general duty COVID ETS. Shortly thereafter, OSHA issued information to employers stating it would exercise enforcement discretion and not issue citations for noncompliance with any ETS requirement before January 10, 2022 and would not issue citations for noncompliance with the testing requirements before February 9, 2022 provided employers are exercising reasonable, good faith efforts to come into compliance.

Not surprisingly, a petition has now also been filed with the U.S. Supreme Court.

The roller coaster ride continues.

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A Glimpse Into OSHA Today and Tomorrow

To state the obvious, the pandemic has resulted in completely unexpected change across the country in so many ways. OSHA’s visibility and role are probably one of the most significant changes to any federal agency. Prior to the pandemic, most businesses outside of specific industries like construction and manufacturing most likely had minimum, if any, interaction with OSHA unless it had a serious injury or fatality. Since then, OSHA has become a household name for any business, large or small, in its efforts to keep workers safe from COVID.

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