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.
Read MoreAuthor: John Ho
OSHA Changes COVID-19 Recordkeeping Requirements for Employers (Again)
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.
Read MoreUnderstanding OSHA’s New Guidance on Recording COVID-19 Cases and Related Employee Privacy Concerns
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:
Read MoreOSHA Considerations For Working Remotely
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.
Read MoreSettling an OSHA Citation with Enhanced Abatements? Consider Potential COVID-19 Implications
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.
Read MoreAddressing an Epidemic in the Workplace: Best Practices and Legal Considerations
As the evolving coronavirus virus (COVID-19) first discovered in China continues to grow in both China and other countries including the United States, businesses here need to consider a number of factors in preparing a response plan. One of the most challenging issues in dealing with any epidemic affecting the workplace is that there is no one-size-fits-all approach. A multitude of factors needs to be considering in formulating an appropriate response plan including but not limited to the nature of the epidemic, size of the business, the specific industry, the demographics of the workforce, and operational needs. In addition, there are numerous laws which must be carefully considered in any response plan such as OSHA, Title VII, the Americans with Disabilities Act (ADA) and the Family Medical Leave Act (FMLA) to name just a few.
Read MoreRecording of Injuries/Illnesses Under OSHA
As mentioned in our last blog, the time for covered employers to post the OSHA 300A Summary is from February 1 to April 30. It is also a good time to revisit the issue of what kinds of injuries and illnesses should be recorded as employers sometimes struggle with this fact-sensitive question. OSHA has several sources that can assist with this determination. The OSHA recordkeeping forms themselves provide guidance on this issue.
Read MoreReminder: OSHA 300A Summary to be Posted from February 1 Until April 30
It’s that time of year again – for covered employers to post the OSHA 300A, i.e., a summary of the total number of job-related injuries and illnesses that occurred last year. The OSHA 300 Log is not required to be posted, only the summary. Employers with ten or fewer employees and employers in certain industry groups are normally exempt from federal OSHA injury and illness recordkeeping and posting requirements. A complete list of exempt industries in the retail, services, finance, and real estate sectors is posted on OSHA’s website.
Read MoreNew Year: New OSHA Penalties, Full Commission and New Top Ten List
As we start the new year, following the Federal Civil Penalties Inflation Adjustment Act which Congress passed in 2015, OSHA announced revised increased maximum penalty levels effective January 15, 2020:
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OSHA’s Redesigned Whistleblower Protection Program Website
OSHA recently announced it redesigned the website for its Whistleblower Protection Program which is found at https://www.whistleblowers.gov/
The website now includes a video that highlights the industries the program covers and provides essential information about the rights and responsibilities of employers and employees such as filing deadlines. Read More