On July 20, 2018, OSHA published a proposed rule to rescind the requirement for establishments with 250 or more employees to electronically submit information from the OSHA 300 Log and 301 form and added a requirement for covered establishments to include the Employer Identification Number with their submissions. These establishments will continue to be required to submit information from their Form 300A summaries. Public comments are due by September 28. Read More

The Angelica Textile case had been kicking around OSHA for almost ten years before it was decided by the Occupational Safety and Health Review Commission on June 24^th by a 2-1 vote with Commissioner James Sullivan,[1] the newest member of the Commission, casting the deciding vote.  The case provides guidance on how to avoid stiff penalties for repeat violations while emphasizing the proactive steps employers can take to keep their employees safe from recognized hazards.

Before this case was decided, OSHA asserted that in order to meet the “substantial similarity” standard to prove a repeat citation, all it had to show was that the same type of equipment or the same process or the same regulation was involved in the current case and a prior violation at any other company facility.  OSHRC now says that evidence of substantial similarity can be rebutted if the employer demonstrates “disparate conditions and hazards associated with these violations of the same standard.”  A welcome development for businesses.

While that alone is helpful, the Review Commission also opened the door for employers to defend a repeat citation by showing the abatement actions they took.  Here, the Commission is open to more nuanced than the rigid application of any test.  In Angelica Textile’s case, the prior citation identified “critical deficiencies” in the Company’s compliance program.  The Company’s abatement efforts “actively sought out and eliminated similar hazards.”  The new citation involved the same standard, but it did not involve a comprehensive failure.  Rather, the current citation identified only two discrete deficiencies in the Company’s established safety program.  The Company’s procedures, coupled with surveys that had been completed for each machine, and the Secretary’s prior acceptance of the Company’s abatement method, allowed the Commission to conclude that the Company “took affirmative steps to achieve compliance and avoid similar violations in the future.”  That was sufficient to allow the Commission to conclude that a repeat citation was not warranted.

Most businesses that manufacture a product have a history of some minor OSHA violations that no one likely thinks about anymore.  That history could come back to bite.  This issue is more pronounced with businesses with multiple locations.  Since repeat citations now carry a fine of up to $129,336, the Angelica Textile case offers employers a roadmap of actions they can take today to avoid serious fines the next time they have an OSHA inspection at any of their facilities.  Now, Angelica Textile provides potential relief to companies that can demonstrate they implemented strategies to both abates the immediate condition but also implemented protocols to help identify future ones.

Our attorneys have a long history of addressing workplace safety concerns and have helped employers design compliance efforts to avoid having unfortunate events in past history come back to hurt otherwise excellent safety efforts.  They would be happy to consult with your company on how to turn the Angelica Textile case to your advantage the next time OSHA comes to visit.

[1] Prior to joining the Occupational Safety and Health Review Commission, Commissioner Sullivan was a partner with Cozen O’Connor’s Labor and Employment Department and had served as the Chair of the American Bar Association’s Committee on Occupational Safety and Health.

As a reminder to establishments with 250 or more employees that are currently required to keep OSHA injury and illness records and establishments with 20-249 employees that are classified in specific industries with historically high rates of occupational injuries and illnesses that the deadline to electronically submit their 2017 Form, 300A data is July 1, 2018. Read More

This article was originally written for the Fasken law firm which is based in Canada.  However, it has some helpful reminders about OSHA that I thought worth sharing here.

For Canadian businesses expanding into the United States whether by opening a new facility or a merger and acquisition, there are a whole host of employment law and related issues that need to be considered in the due diligence process including workplace safety and health issues. As a starting point, here are the Top 10 things these businesses should know about OSHA. Read More

The OSHA Chronicle is pleased to publish the following guest article written by Norman A. Keith, J.D., LL.M. CRSP, a partner at Fasken Martineau DuMoulin LLP who specializes in Canadian workplace safety and health issues.

For American businesses expanding into Canada, whether opening a new facility or acquiring by a merger or acquisition, there are a number of Canadian Occupational Health and Safety (“OHS”) legal compliance requirements. This article provides 10 things that an American or multi-national business needs to know to ensure OHS legal compliance in Canada. Read More

As previously mentioned in this blog, all covered employers under the new electronic recordkeeping regulation were required to electronically file their 2016 300A form by December 30, 2017. As of January 1, 2018, OSHA no longer accepted the 2016 data. During the filing period, OSHA indicated approximately one-third of the establishments that were required to file did not do so. Read More