Recent Webinar Focused on Hot Topics in Safety and Health Law

by Nexsen Pruet, PLLC
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Nexsen Pruet, PLLC

The Oct. 11, 2017, webinar in our Workplaces that Win certificate series consisted of a safety and health update.  During the event, we discussed topics that included:

New developments at the Occupational Safety and Health Administration of the U.S. Department of Labor (“OSHA”), the agency that 1) enforces the Occupational Safety and Health Act (“Act”) and standards it has issued pursuant to the Act; and 2) investigates whistleblower cases brought under the Act and 21 other statutes. New personnel at the agency include Loren Sweatt, formerly Senior Policy Advisor at the Committee on Education and the Workforce of the U.S. House of Representatives, who was recently appointed Deputy Assistant Secretary for OSHA, and Scott Mungo, Vice President of Safety, Sustainability and Vehicle Maintenance with FedEx Ground, who was nominated to be the next Assistant Secretary of Labor for OSHA on Oct. 30, 2017.

What it means that North and South Carolina are “state plan” states that have their own agencies – the Occupational Safety and Health Division of the N.C. Department of Labor, and the Occupational Safety and Health Division of the S.C. Department of Labor, Licensing and Regulation – that enforce standards that meet or exceed OSHA rules at most worksites in these states. (Other “state plan” states in the Southeast include Tennessee and Virginia; Alabama, Florida, Georgia and Mississippi do not have that designation, as employers there are covered directly by OSHA.)

The business case for safety and health: How workplace accidents increase employer costs directly and indirectly, and how “serious” OSHA citations can hurt bidding opportunities.

OSHA’s Electronic Recordkeeping Rule (“ERR”), which is in effect in OSHA states and some “state plan” states such as North Carolina but not in South Carolina and some other state plan states. The ERR has two requirements:  Employers must submit injury and illness data through a new publicly accessible website; and employers must have a “reasonable procedure” for reporting work-related injuries and illnesses that is not retaliatory.  According to the rule, a “reasonable procedure” should not include mandatory post-accident drug testing or an incentive plan that rewards a low number of injuries. 

OSHA’s recent penalty increase, which is not yet in effect in North or South Carolina and some other “state plan” states. Under the increase, which is in effect in states covered directly by OSHA, penalties for serious citations have increased from a maximum of $7,000 per citation to $12,675 per citation.  Penalties for willful or repeat citations have increased from a range of $5,000 to $70,000 per citation to $9,054 to $126,749 per citation. 

OSHA’s Temporary Worker Initiative (“TWI”), which started in 2013 to get employers to provide more safety training to temporary staff. The initiative mostly targets host employers who don’t train temps on how to safely operate machines and equipment in manufacturing and construction.  Though not formally adopted in North and South Carolina, both states are using TWI publications as guidance.

OSHA’s 2016 revisions to its Whistleblower Investigations Manual, which lowered the standard of proof for whistleblowers to make it easier for them to get further in the investigative process with their cases.

How to manage an OSHA inspection. Among other things, employers can train one or more managers to interface with inspectors; to handle the walk-around phase of the inspection; and to participate in interviews with management employees.  Also, employers can be prepared to produce documents that are routinely requested, such as Form 300s or Material Safety Data Sheets, and can have a plan for how to respond to requests for self-audits, insurance reports and documents that contain trade secrets.

OSHA’s “Top 10” most frequently cited alleged violations for fiscal year 2017. For more information about the “Top 10,” see this article

OSHA’s new workplace violence directive, which addresses when the agency may inspect an employer for a workplace violence complaint or incident. According to the directive, a workplace violence incident may constitute a violation of the Act’s General Duty Clause – and lead to a citation against the employer – if 1) the employer failed to keep its workplace free of a foreseeable violence hazard; 2) the hazard was recognized explicitly or because it occurred in a recognized high-risk industry; 3) the hazard was causing or likely to cause death or serious physical harm; and 4) there was a feasible, useful means of correcting the hazard.

Employer strategies for addressing opioid addiction, including training and counseling.

OSHA’s Distracted Driver Initiative and how employers can implement a workplace culture that prohibits texting while driving on the job or in company-owned vehicles. According to OSHA, employers violate the General Duty Clause when their policies or practices require texting/emailing while driving; create incentives that encourage or condone texting/emailing while driving; or are structured in such a way that texting is a practical necessity for workers to carry out their job duties.

The presentation slides for the webinar are available here.  If you have questions about any of these topics, please let us know.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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