Almost immediately after taking office, President Biden issued an Executive Order requiring OSHA to publish revised COVID-19 guidance for employers, among other things. This past Friday, OSHA published such revised guidance which can be found here.(more…)
Happy New Year! A New Year means increased maximum penalties for OSHA citations. As of January 16, 2021, the maximum penalties for serious, other-than-serious and posting requirements is now $13,653 per violation; $13,653 per day for failure to abate; and $136,532 for willful or repeat violations.(more…)
OSHA’s long-standing position is that it does not approve or endorse particular products. Moreover, the determination of compliance with OSHA’s standards cannot be based on an evaluation of the equipment or devices alone. Rather, this determination must consider factors related to the use of such devices at a worksite and should include an evaluation, through direct observation, of employee work practices and conditions of use in the workplace. See OSHA Standard Interpretation dated September 15, 1993, which can be found here.(more…)
It is that time of year again where many businesses provide their employees with the opportunity to participate in various charitable events in the spirit of giving. Doing so may raise a number of employment-related issues including whether such time is compensable or whether an injury during such an event is covered by Workers’ Compensation. The answer to these questions may turn on facts such as whether employees are required to participate, does it occur during normal business hours, or whether employees are incentivized or otherwise encouraged to attend.(more…)
With a new administration on the horizon, it seems likely OSHA may revisit whether it will issue emergency COVID-19 regulations, something Secretary of Labor Scalia has repeatedly stated is not necessary despite heavy criticism by worker advocate groups. Indeed, many states have or will be implementing such emergency regulations such as Virginia, California, Oregon, and Michigan. Currently, OSHA relies on the general duty clause to ensure employers are taking necessary measures to protect employees from COVID-19 in the workplace. However, OSHA has made clear that other existing standards may be applicable in COVID-19 related investigations. Recently, OSHA published a list of the most frequently cited standards in COVID-19 investigations which can be found here.(more…)
OSHA practitioners who have handled citations involving fatalities or severe injuries are most likely no strangers to considering how these citations including the alleged violation description might affect collateral litigation such as wrongful death actions or tort claims. Indeed, collateral litigation almost always presents significantly more liability for businesses than the OSHA penalty. Although state workers’ compensation laws may differ, it is usually difficult for an employee to evade the exclusive remedy of workers’ compensation in a more traditional injury on the job. Of course, there may be other facts such as a fatality on a multi-employer worksite that might complicate workers’ compensation coverage. In such cases, the business may decide it is more advantageous to take the position that the injured employee of another entity is also its statutory employee to trigger workers’ compensation coverage. These considerations will often drive OSHA settlements including timing and settlement agreement language. For example, businesses should insist on language that states the settlement cannot be used for any other purpose except OSHA enforcement. Of course, notwithstanding such language, a court may still permit the settlement as evidence in collateral litigation.(more…)
On May 19, 2020, the Occupational Safety and Health Administration (“OSHA”) published revised enforcement guidance detailing when employers must record COVID-19 illnesses. The new guidance reverses course on prior guidance dated April 10, 2020 which relaxed the circumstances when most employers would need to record these illnesses. The new guidance becomes effective on May 26, 2020, and will remain in effect until further notice.(more…)
On April 10, 2020, OSHA issued additional guidance for employers on their obligations to record COVID-19 cases which can be found here.
Prior to this guidance, OSHA made clear that COVID-19 cases may be recordable if a worker is infected as a result of performing work-related duties. Thus, employers would need to record COVID-19 cases if all of the following conditions are met:(more…)
Many businesses are permitting employees to work from home in response to COVID-19 and many more will do so particularly as states like New York have and/or will be restricting the number of employees at the worksite.
Does this mean the employer must inspect an employee’s home to ensure that it is a safe and healthy work environment under OSHA? The answer is generally no. In 2002, OSHA provided guidance regarding telecommuting available here.(more…)
It is not unusual for OSHA to request “enhanced abatements” when resolving citations. Enhanced abatement is when an employer agrees to perform certain abatement actions beyond the recognized hazard in the specifically cited standard. For example, if an employer receives a machine guarding citation for failure to guard machine A, OSHA may request the employer perform a corporate-wide guarding audit for all equipment in addition to guarding machine A. Other common examples of enhanced abatement include committing to performing future employee training at all facilities in applicable areas or agreeing to conduct safety and health audits with OSHA’s consultation branch or an independent safety and health firm.(more…)