Do Recent Changes and Legal Challenges to the Independent Contractor Test Affect OSHA?

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.

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OSHA’s Cold Stress Guidance

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:

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Westray Bill Gaining Traction Across Canada

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:

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.

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Are Random Acts of Violence Recordable OSHA Injuries?

According to a recent OSHA standard interpretation letter, probably yes. In the May 17, 2023 letter, an employee drove the company vehicle on a public roadway between service calls. As the employee approached a car accident, the driver who caused the accident entered the company’s vehicle, shot the employee, stole the vehicle, and fled the scene. There was no evidence that the employee did anything to provoke the attacker. The employer subsequently learned that the attacker had been in the midst of a serial crime spree at the time of the accident.

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The Interplay Between Ted Lasso and OSHA

WARNING: Spoiler alert! STOP reading now if you do not want to read spoilers which are used as examples to illustrate points in the blog article.

As viewers know, Ted Lasso is a feel good show about an American college football coach who is hired to coach AFC Richmond, an English soccer team. On its face, one might wonder how Ted Lasso relates at all to OSHA but as we follow Ted through his journey, it raises some interesting OSHA considerations.

Mental illness. During an important soccer match, Ted leaves the game and fails to return. At first, he tells everyone he left due to a stomachache. Later we learn that Ted’s abrupt departure was due to a serious panic attack. During the scene, it is clear that the high-pressure game conditions are at least, in part, what triggers the panic attack. However, we also discover that Ted is going through, like all of us, his own personal struggles which include coping with the suicide of his father, an ongoing divorce and being separated from his son in the United States while coaching in London.

The first issue is whether the panic attack is recordable as an illness which requires inquiry into distinct issues. Under OSHA’s recordkeeping rule, an injury/illness must meet general recording criteria to be recordable, i.e., it must result in death, days away from work, restricted work or transfer to another job, medical treatment beyond first aid or loss of consciousness. The episode does not provide us enough information to determine whether Ted’s panic attack resulted in days away from work but OSHA states “restricted work” occurs when as a result of a work-related illness, an employer keeps the employee from performing one or more of the routine functions of his job or from working the full workday that he otherwise would have been scheduled to work. Here, Ted ran off himself as opposed to his employer restricting his work so the definition does not apply.

In addition, OSHA’s recordkeeping rule specifically addresses mental illness. The rule states mental illness will not be considered work-related unless the employee voluntarily provides the employer with an opinion from a physician or other licensed health care professional with appropriate training and experience stating that the employee has a mental illness that is work-related. For this reason, Ted’s panic attack would not be recordable under the facts provided. 29 C.F.R. § 1904.5(b)(2). Indeed, OSHA has issued the following Q&A:

Q: An employee comes in to work and they are extremely distraught and stressed due to personal matters outside of work. While at work, the employee has an anxiety attack and faints. Would this be considered an OSHA recordable?
A: Injuries and illnesses that result solely from non-work related events or exposures are not recordable under the exception at 1904.5(b)(2)(ii). Mental illnesses, such as anxiety disorder are recordable only if the employee voluntarily provides the employer with an opinion from a physician or other licensed health care professional with appropriate training and experience (psychiatrist, psychologist, psychiatric nurse practitioner, etc.) stating that the employee has a mental illness that is work-related, and the case meets one or more of the general recording criteria.

Here, it seems unlikely through the counseling sessions we watch that the Team’s psychologist, Sharon Fieldstone, would agree that the panic attack was work-related. What if instead of a panic attack, Ted had a heart attack which resulted in hospitalization? The following Q&A would be instructive on this analysis:

Q: An employee died of a heart attack during working hours. He died while sitting on the lobby talking with a co-worker. The employee has a history of hypertension and high blood pressure. Is this case recordable?
A: If the case is wholly caused by non-work factors, then it is not work-related and will not be recorded in the OSHA records. If work contributed to the illness in some way, for example, the work is strenuous or the work environment is very hot, then it would be work-related and recordable.

This analysis is a tougher call. Although we learn about Ted’s personal struggles, it is also clear from the scene that the high stress game conditions seemed to contribute, in some part, to the hypothetical heart attack making it more likely than not that it is a recordable event.

Workplace Violence. In the show, Roy is a hard-nosed coach for the Team who has a temper. There are different scenes where Roy physically attacks team members. For example, in one episode Roy head butt’s Jamie after a win because he [Jamie] told Keeley that he still loved her. Of course, Roy did it so he could then hug Jamie to celebrate. If Jamie’s injury from the head butt meets the general recordkeeping criteria, e.g., an injury requiring medical treatment beyond first aid, would it need to be recorded? Yes, the general rule is that all injuries occurring to employees on the employer’s premises and/or during work hours are presumed to be work-related including but not limited to fist fights and similar workplace violence incidents. See August 18, 1993 Standard Interpretation (fist fight occurring during work is recordable if it results in days away from work).

Off-Site Injuries & Illnesses. There is a scene where Ted takes the Team to visit the sewers of London to learn a lesson about letting “smelly” things go. During the scene, players can be seen holding their noses and acting nauseous which certainly makes sense. Although no one appears to actually get sick, what if one of the players did get ill from breathing in the sewage fumes? Would the illness be recordable? Again, if the illness meets the general recording criteria, it is well established that injuries and illness would be recordable even if they occurred away from the employer’s establishment if the employee is engaged in work activities in the interest of the employer. Here, the players were all instructed to go to the sewer by Ted as a coaching exercise so clearly they were there in the interest of the employer and such an illness would be recordable.

However, what if the Team was asked by Ted to participate in a charitable activity on a voluntary basis and a team member was injured at the event, would this be recordable? Here, as long as the charitable event was completely voluntary, it would not be recordable. See October 5, 2020 Standard Interpretation stating that injuries that result solely from voluntary participation in recreational activities are generally not considered work-related. The interpretation does caution that if the activities are not purely voluntary or are conducted at the direction of the employer, it would be considered work-related. Knowing how persuasive Ted can be particularly over his team members, there would likely be some fact issues to explore before this determination can be made.

Jurisdiction. Does OSHA have jurisdiction to enforce standards for employees working abroad? In the show, Ted is hired by and works for an English soccer team, so clearly OSHA would have no jurisdiction. What if Ted worked for an American soccer team but was working abroad? The answer remains the same as OSHA’s jurisdiction is limited to the geographic coverage in the United States and its territories.

As another twist, let’s assume Ted Lasso was set in the United States. Would OSHA have jurisdiction to regulate the safety and health of the soccer team, i.e., does OSHA enforce standards in professional sports? A September 12, 2008 Standard Interpretation addressed this issue in the professional baseball setting and opined that the issue turns on whether professional baseball players are considered independent contractors or employees. In the interpretation, OSHA essentially punted by saying this determination must be made on a case-by-case basis after considering all of the circumstances affecting the relationship between the teams and their players and applying the common law factors. However, OSHA also stated that “in most cases,” OSHA does not take enforcement action with regard to professional athletes. Given that professional baseball players and all the other major sports in the United States are unionized, there is little doubt that the players are legally employees. However, to date, OSHA has consistently stayed away from regulating professional sports. There are certainly stakeholders that continue to argue OSHA should though.

Go AFC Richmond!

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A Brief Refresher on OSHA’s Emergency Action Plan Standard

Sadly, tragic workplace violence incidents continue to plague the country. Although it is unlikely that OSHA, in the foreseeable future, will engage in rulemaking for a general industry workplace violence rule, it has already taken affirmative steps to move forward on rulemaking for a workplace violence standard in the healthcare and social assistance industry.
However, almost every business is required to have an emergency action plan (“EAP”) which is designed to facilitate and organize employer and employee actions during workplace emergencies. If fire extinguishers are required or provided in the workplace, and if anyone will be evacuated during a fire or other emergency, then OSHA generally requires the business to have an EAP with limited exemptions.
As a reminder, an EAP must be in writing, kept in the workplace and available to employees for review although an employer with 10 or few employees may communicate the plan orally to employees. At minimum, an EAP must include: (1) procedures for reporting a fire or other emergency; (2) procedures for emergency evacuation, including type of evacuation and exit route assignments; (3) procedures to be followed by employees who remain to operate critical plan operations before they evacuate; (4) procedures to account for all employees after evacuation; (5) procedures to be followed by employees performing resource or medical duties; and (6) the name or job title of every employee who may be contacted by employees who need more information about the plan or an explanation of their duties under the plan. 29 C.F.R. § 1910.38(c).
The rule also requires employers to review the EAP with each employee covered by the plan (1) when it is developed or the employee is initially assigned to do a job; (2) when the employee’s responsibilities under the plan change; or (3) when the plan is changed. 29 C.F.R. § 1910.38(f).
As OSHA states, a properly developed EAP and employee training will help ensure fewer and less severe employee injuries and less structural damage to the facility during emergencies. To assist employers in developing an appropriate EAP, OSHA has published an Etool which can be found at

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Fifth Circuit to Review OSHA’s Unpreventable Employee Misconduct Defense

Unpreventable employee misconduct is an affirmative defense commonly asserted to OSHA citations. To generally prevail on this defense, an employer must show that it 1) established work rules designed to prevent the violative conditions from occurring; 2) adequately communicated those rules to its employees; 3) took steps to discover the violations of those rules and 4) effectively enforced the rules when violations were discovered. As an affirmative defense, the employer has the burden of proof.

In October of 2022, the Occupational Safety and Health Review Commission affirmed two serious violations against a contractor and rejected the unpreventable employee misconduct defense. In the underlying ALJ decision, the court found that the employer had established in its Safety Manual adequate work rules to implement the requirements of the cited standards and that it had effectively communicated its work rules to its employees through meetings, training, and the Safety Manual. The court opined that the communication of work rules can be adequate without being documented.

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