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OSHA’s website recently added advice to employers, particularly in retail and warehousing, to help keep their employees safe this holiday season and linked a video on the Department of Labor’s YouTube page containing nine holiday season safety tips. The tips include: (1) training workers on safety work practices in a language they understand; (2) providing hands-on training for new workers on using equipment safely; (3) ensuring delivery service and warehouse employees wear bright, visible clothing; (4) preventing injuries by properly stacking materials and making sure workers stand clear when doors are opened for unloading; (5) creating a detailed and flexible staffing plan to help reduce workplace stress; (6) implementing an emergency action plan when large crowds are expected; (7) making sure entrance and exit signs are visible; (8) encouraging workers to report safety and health issues; and (9) understanding seasonal workers have the same rights as full-time workers.

Following historical precedent, OSHA’s top ten cited violations for 2024 surprise no one. They all appeared on last year’s list, although their relative positions changed a bit. Fall protection (general requirements) remains the most cited citation and has held the spot for the fourteenth consecutive year.

The full list in order appears below:

In a recent standard interpretation dated June 12, 2024, OSHA clarified the circumstances when a motor vehicle injury and fatality would be considered work-related. In doing so, OSHA restated the general principle that injuries that occur when an employee is on travel status are work-related, if, at the time of the injury, the employee was engaged in work activities “in the interest of the employer.” OSHA continued by providing examples of such activities to include travel to and from customer contacts, conducting job tasks, and entertaining or being entertained to transact, discuss, or promote business with the caveat that work-related entertainment only includes entertainment activities engaged in at the direction of the employer.

On July 2, 2024, OSHA released its long-awaited national heat illness and injury prevention standard, as predicated in an earlier blog article. It applies to all employers conducting outdoor and indoor work in all general industry, construction, maritime, and agricultural industries with limited exceptions.

In an enforcement memorandum dated May 2, 2024, OSHA provided guidance on whether musculoskeletal injuries are recordable under three treatment scenarios: first aid, Active Release Technique (ART) (massage that targets soft tissues), and exercises and stretching.

In doing so, OSHA reminded employers that the definition of “first aid” set forth in 29 CFR 1904.7(b)(5)(ii) is a comprehensive list of first aid treatments. Any treatment not included on the list is considered medical treatment beyond first aid and, thus, generally meets recording criteria.

Businesses have struggled with the determination of who is an independent contractor vs employee for many decades. One of the challenges rests with the fact that the applicable legal test may be different depending on the area of law at issue. Thus, employers could find themselves in a situation where the IRS determines that a specific factual relationship to be an independent contractor while a state Department of Labor for purposes of Unemployment Benefits may determine otherwise. Obviously, such conflicting decisions place the employer in a tricky predicament.

On January 26, 2024, OSHA published a revised enforcement manual for Process Safety Management of Highly Hazardous Chemicals (“Manual”). The Manual reflect OSHA’s first revisions to its prior directive issued in 1994 which is specifically identified as cancelled and superseded by the Manual.

As we head into the New Year, it is a good time for businesses to review OSHA’s cold stress guidance (link below). OSHA reminds employers that monitoring the wind chill temperature and workers’ physical condition while performing tasks will help them assess cold stress exposure and assist them in developing strategies to ensure work can be done safely. This is particularly true for employees not accustomed to working in the cold or those returning to such conditions, i.e., acclimatization, which is also an important tool in minimizing heat stress. Other cold stress risk factors identified by OSHA include 1) wetness, dressing improperly and exhaustion; 2) predisposing health conditions such as diabetes; and 3) poor physical conditioning. To help minimize cold stress hazards, OSHA lists potential abatement as including:

Guest Author: Norm Keith, B.A.(Econ), J.D., LL.M. Mr. Keith is a leading management-side employment and labor lawyer, the author of 12 books, 8 of which deal with OHS, and is a senior partner at the law firm of KPMG Law LLP, and may be reached at: nkieth@kpmg.ca.

The enduring legal legacy of the Westray Mine disaster is the Bill C-45 amendment to the Criminal Code that established the new crime of Occupational Health and Safety (“OHS”) criminal negligence for individuals and organizations. Often referred to as the Westray Bill, it introduced a legal duty and accountability for corporate and individual persons to take “reasonable steps to prevent bodily harm” in the Criminal Code. R.S.C. 1985, c. C-46. This amendment allowed for the police to investigate and Crown Attorneys to prosecute employers, directors, officers, managers, and even workers if they breached their legal duty and a worker was injured in the course of their employment. Recent changes in Ontario and elsewhere in Canada have seen an increase in the use of the Westray Bill as an enforcement mechanism for safety violations. This article will review the background of the Westray Bill, the critical content of the Westray Bill, some of the reasons the law has rarely been enforced in the past, and why it appears the criminal offense of OHS Criminal Negligence is gaining traction and increased use across the country.

OSHA recently shared preliminary data for its Top 10 list in fiscal year 2023 which ended September 30, 2023. They are listed below in order of most frequently cited: