Odds Increase On OSHA Issuing COVID-19 Emergency Temporary Standards

Shortly after President Biden took office, he signed an Executive Order directing OSHA to, among other things, determine whether emergency temporary standards (ETS) on COVID-19 are necessary; and if so, to issue them by March 15, 2021. Former Secretary of Labor Eugene Scalia repeatedly stated an ETS was not necessary and OSHA’s general duty clause provided OSHA with the necessary enforcement tool to address COVID-19 in the workplace.

(more…)
About The Author

OSHA’s Return to Public Shaming

Prior to the Trump administration, OSHA commonly engaged in the practice of “public shaming.” In other words, if an OSHA investigation found a relatively serious safety violation, it would issue a press release identifying the business, exposing their failings, and detailing the hazards discovered in the inspection. Often, these press releases would be picked up by other media sources and more widely circulated. The objective was that such media attention would serve an educational and deterrent purpose to other entities in the same industry and/or geographic area. During this time, OSHA also had a general policy of providing information about alleged violations upon request from media sources quickly. Critics of the policy argued that OSHA should not publicize enforcement cases until the citations have been fully resolved as a matter of due process. 

(more…)
About The Author

Be Wary of OSHA “Approved” PPE

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…)
About The Author

Injuries at Voluntary Charitable Events: Recordable under OSHA?

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…)
About The Author

OSHA’s Most Frequently Cited Standards in COVID-19 Investigations

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…)
About The Author

Recent OSHRC Decisions Reinforce the Principle that Unsafe Employee Conduct May Mitigate Against Reasonable Employer Safety Precautions in the Context of OSHA Citations

On September 21, 2020, the Occupational Safety and Health Review Commission (OSHRC) unanimously vacated two machine-guard citations levied against employers by the Occupational Safety and Health Administration (OSHA) and substantially reduced the penalty imposed in a third case, holding that more weight should have been given to unsafe employee behavior. This blog entry provides a brief synopsis of each of these matters and examines the key takeaways.

(more…)
About The Author

The Interplay Between OSHA and Wrongful Death, Tort, and Gross Negligence Claims in the COVID-19 Era

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…)
About The Author

OSHA Issues New FAQs Regarding Face Coverings Amidst Employees’ Return to the Workplace

On June 10, 2020, the Occupational Safety and Health Administration (OSHA) published a series of frequently asked questions and answers (FAQs) regarding the recommended use of surgical masks, cloth face coverings, and respirators in the workplace in the wake of ongoing health concerns arising from the continued spread of COVID-19. The new guidelines recognize that as many workers begin to return to their places of employment throughout the United States, some may be wearing masks in the workplace for the first time. The FAQs embody the most recent guidance from OSHA addressing protective measures for the workplace during the coronavirus pandemic.

(more…)
About The Author