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Can a Face Mask Land You in the Penalty Box?
By: Donald Berner

Just a quick heads-up for employers in this challenging period. With everyone thinking about COVID-19 and worrying about exposure, some individuals have become enamored with the idea of wearing a face mask for personal protection. 

In the past few days, I have observed a number of people wandering the streets wearing face masks. So it may only be a matter of time before an employee wants to wear one in your workplace. 

While this may seem harmless, employers should be cautious with respect to the use of face masks in the workplace. There is a much deeper discussion that the employer may need to have with regard to this issue. 

If the face mask is a respirator (think N-95), the voluntary use of a respirator in the workplace can draw an employer into the provisions of OSHA’s Respiratory Protection standard.  Going a step further, if an employer decides to require the use of a face mask that is considered a respirator, the requirements under the standard become even more onerous. 

In this time of paranoia and hasty reactions, don’t let yourself get checked into the boards by allowing the use of a face mask or dust mask in the workplace that is actually deemed a respirator, without first getting advice from legal counsel.

Increased Workplace Violence and Why You Need a Plan to Address Recognized Hazards
By: Sarah Otto

Unfortunately, workplace shootings are on the rise as an emerging issue for employers. Even courts and judges have taken note in their judicial opinions that workplace violence is increasing. While there are, of course, different degrees of violence that employees may be exposed to at work, the incidence of a shooting is a particularly concerning type of violence.

According to the Bureau of Labor and Statistics, workplace shootings in recent years have increased by over 10%. As a result, employers should be aware of the risk and legal issues involved. Employers should also adopt a plan and policy to help employees prepare in the event a worst-case-scenario occurs.
Legal Issues for Employers
Under the Occupational Safety and Health Act of 1970, an employer has a general duty to render its workplace free from serious recognized hazards. The Act was originally motivated by a wish to cut down on the numbers of workplace deaths caused by industrial accidents and exposures, but the Act addresses many types of hazards.
According to guidelines published by the Occupational Safety and Health Administration (OSHA), employers are not strictly liable for violence in the workplace, including workplace shootings. There are no standards in OSHA      Continue Reading...
Trump Administration Reverses OSHA Record-Keeping Rule Change Implemented by President Obama
By: Donald Berner

The OSHA administrative change referenced in my blog post of December 23, 2016, has been overturned by the Trump Administration's approval of a joint congressional resolution.  As you may recall, OSHA established a rule permitting the issuance of citations to employers for record-keeping violations for up to five years from the point of the error or violation.  The Trump Administration's approval of the joint congressional resolution returns the look back period for violations to six months. 

Click here to review the prior blog post from December of 2016.

OSHA Changes Statute of Limitations on Recordkeeping Citations
By: Donald Berner

OSHA issued a new rule last week related to the statute of limitations for recordkeeping violations.  For those of you scratching your head and wondering what is a "statute of limitations", it is simply a time limit.  Prior to the issuance of the new rule, OSHA could only cite an employer for a recordkeeping failure in the six month period following the error.  The new rule moves that time limit out to five years.  This basically means that errors in your recordkeeping practices can now result in a citation for up to five years after the error. 

As an example, Frosty the Elf sustains an injury on 12/24/2016 loading Santa's sleigh.  North Pole Industries does not have a full-time HR person and Mrs. Claus fails to record the injury in the logs.  Under the old rules, if OSHA did not discover the error prior to June 24, 2017, North Pole Industries was in the clear.  Under the new rule, Mrs. Claus' mistake can now be the basis of a citation until December 23, 2021. 

The new rule takes effect on January 18, 2017.  While the rule has been issued, it is possible the incoming Trump Administration will change directions or Congress may take action to block the rule.  Stay tuned as we move into 2017. 

OSHA Record-Keeping Rule Modified
By: Donald Berner

On May 11, OSHA issued a final rule modifying the record-keeping regulations.  The final rule takes effect in August of 2016.  The highlights of the final rule include:

  • Requires all employers with 250 or more employees to submit OSHA Form 300A electronically.
  • Requires all employers with more than 20 employees in high-hazard industries to submit OSHA Form 300A electronically (these can be found by NAICS code in an appendix to the final rule).
  • The submission deadline for the prior year data in 2017 and 2018 is July 1.
  • The submission deadline for the prior year data after 2019 is March 2.

Above and beyond the procedural changes, the final rule includes strong anti-retaliation language.  For example, the final rule includes a requirement that injury/illness reporting procedures are not reasonable if they deter or discourage employees from reporting.   This language may interfere with employer incentive programs designed to reward employees for preventing work-related injuries or illnesses under the theory that such an incentive plan discourages reporting. The final rule also contains a requirement for employers to provide notice to employees of their right to report work-related injuries and illnesses along with notification that the employer will not take negative action against an employee for such reporting.   

The purpose of the electronic submission process seems to be driven towards OSHA posting employer specific data on its website as an education/outreach tool.  In addition, it will allow OSHA easier access to injury/illness data for its own analysis purposes internally.  It is likely this more readily accessible information will      Continue Reading...

Protecting Your Workforce from the Zika Virus
By: Donald Berner

Last week OSHA issued a fact sheet to assist employers with the prevention of occupational exposure to the Zika virus.  While the United States has not seen a Zika virus outbreak, the mosquito types capable of carrying the virus exist in large parts of the United States.  With the summer season approaching, employers are more likely to have employees exposed to mosquito bites and thus potentially exposed to Zika and/or other mosquito-borne illnesses.

If you have employees working outdoors, following this guidance will be a good idea.  To see the OSHA fact sheet click here.

New Farmworker Safety Rule Issued
By: Donald Berner

The Environmental Protection Agency (EPA) recently issued a farmworker safety rule related to pesticide use.  The new rule will likely take effect in the early part of 2017 as the full version is set to be published in the next 60 days with a 14 month implementation period before taking effect.  Some highlights of the new rule include:

  • Employees under the age of 18 will not be permitted to handle or apply pesticides.
  • Pesticide training must take place on an annual basis as opposed to once every five years.
  • Employees must be trained on how to minimize the risk of carrying home residue of the pesticides in use.
  • The usage of personal protective equipment will be expanded as well as the testing and monitoring of the equipment.
  • Employers will be required to maintain records of all pesticide use for at least two years.
  • Farm workers will now have whistle blower protections.

With these changes set to take place in 2017, employers that use pesticides will want to review the full rule upon publication and begin implementing the changes along the way. 

Amputation Emphasis Program Gets Update
By: Donald Berner

This summer OSHA updated its national emphasis program designed to reduce the occurrence of amputations in the workplace.  The directive sets out a number of program requirements as well as adding a number of new manufacturing industry groupings to the scope of the program.  Here are a few highlights from the directive:

  • For worksites newly covered by the program, OSHA is required to engage in outreach efforts to the employer prior to conducting an inspection under the program.
  • Facilities with an amputation in the last five years can be added to the list of target entities under the program.  In other words, if your facility is not covered by the emphasis program, but has had an amputation, OSHA can add you to the list of targets for random inspection.
  • The new directive utilizes the NAICS code system as opposed to the old SIC code system.  This change will result in differences in the master list of potential employer targets for inspection.  You can find the list within the directive on OSHA's website here.

For employers falling within the industry listing contained in the directive, your facility is on a list OSHA will target for random inspections.  It is well worth your time to take a closer look at your machinery that presents an amputation risk.  As they say -- an ounce of prevention is worth a pound of cure.

Top Ten Most Frequently Cited OSHA Standards for FY2014
By: Donald Berner

Here is a little top ten list fun on this pre-Valentine's Day Thursday.  I spent way too much time earlier this week helping my 4th grade daughter put together her Valentine's Day box for school and I'm sure several of these standards were violated in my kitchen.

Without further ado here is the list . . .  

10. Electrical systems design (good news here for our project -- it was super low tech so no chance of a violation here)

9.  Machine guarding (the scissors I used to cut the shoe box should have been guarded or at least my fingers believe that to be true)

8.  Electrical wiring methods

7.  Ladders (I'm sure my small two step ladder/stool I used to get to the top shelves in the pantry for construction paper violate something here)

6.  Lockout/tagout

5.  Powered industrial trucks (thankfully we didn't need a lift to get the box out the door for delivery to school)

4.  Respiratory protection (the smell of glue sticks and markers in the air surely required some form of protection)

3.  Scaffolding

2.  Hazard communication (anytime I work on an artistic related project somebody should be warning the rest of the house)

and the number one most cited standard . . .

1.  Fall protection (thankfully the table top isn't high enough to qualify as a fall hazard although I did drop quite a few things if that counts)

For all of you that have some safety responsibilities, this list is a good starting point for thinking about the types of issues you might have present in your workplace. 

New OSHA Reporting Rule Goes Into Effect
By: Donald Berner

Effective January 1, 2015, the new OSHA incident reporting rule took effect.  The rule change expands the types of incidents employers are required to report to OSHA.  The prior rule required employers to report a work-related fatality or work-related hospitalization of three or more employees.  The rule has been modified to require the reporting of any work-related fatality, work-related hospitalization of one or more employees, all work-related amputations, and any work-related loss of an eye.  These new rules significantly lower the threshold for reporting incidents to OSHA.  The result of these changes will be an increase in the number of incidents that an employer is required to report to OSHA.  Employers should make note of the lower threshold on hospitalizations and the addition of the amputation and eye loss requirements. 

OSHA Taking Comments on Electronic Submission of Injury and Illness Data
By: Donald Berner

OSHA has proposed an amendment to the recordkeeping regulations to add a requirement for electronic submission of injury and illness information.  The comment period for this proposed change has been extended through March 8, 2014.  Stay tuned as this proposed change works its way through the regulatory process. 

OSHA Adds Easy to Access Online Complaint Form
By: Donald Berner

OSHA is responsible for administering whistleblower complaints for a variety of statutes.  Click here for the full listing.  In an attempt to make complaint filing easier, OSHA has established an online complaint form.  Click here for the complaint page.  Only time will tell whether this easy access will lead to an increase in complaints. 

OSHA Hazard Communication Training
By: Donald Berner

Navigating OSHA’s Hazard Communication Standard can be time-consuming and confusing. OSHA’s recent amendments to the Standard do not make this task any easier. These amendments also impose a requirement that employers provide training to their employees on the new label elements and new safety data sheet by December 1, 2013.  The HAZCOM standard applies to any employers with employees who may have access to any hazardous chemical, and is not limited to manufacturing companies or chemical producers. 

In order to assist employers with this requirement, attorneys at Foulston Siefkin have prepared a presentation-ready PowerPoint that meets OSHA’s requirements for the mandatory training. This presentation provides detailed explanations of the new label elements and safety data sheet changes, and offers an easy to navigate, do-it-yourself format. 

The presentation includes:
·         PowerPoint Slides
·         Speaking Notes to assist the presenter
·         A sample Chemical Label compliant with the new requirements
·         Side by Side comparison of the old and new Hazard Communication Standards
·         Detailed Explanations of the new label elements and safety data sheet

To purchase the presentation materials click here.

Washington Looking to Increase Penalties for OSHA Violations
By: Donald Berner

An OSHA reform bill titled Protecting America's Workers Act was reintroduced in the Senate. Employers should keep an eye on the progress of this bill as its goal is to increase the penalties for OSHA violations. This potential legislation comes following OSHA's own internal changes a few years ago that resulted in higher penalty amounts being levied by OSHA. In addition to the penalty changes, the proposed legislation would expand the coverage of the general duty clause and revise the way subcontractor employer relationships are viewed by OSHA. Stay tuned as this Senate bill begins its journey through the legislative process.  

Preparing for the Holiday Season and Beyond
By: Donald Berner

It's that time of year again. Thanksgiving has arrived, and Christmas is just around the corner. The holiday season brings lots of things to prepare for each year. For those of you out shopping, there were preparations for the big Black Friday sales events. Hopefully by the time you are looking at this article you have survived the crazy rush of the day and found all those awesome bargains you went out to get today. Some of you might find preparing for the holiday season to be a bit of a waste of time this year since the Mayan's have forecast the end of the world. 

What I wanted to point out today is a bit of guidance about preparing for the Black Plague of 2012. Or maybe just a simple flu bug. OSHA has a webpage with resources that have been prepared for employers to assist in dealing with a flu pandemic which can be found here. Whether this is the year of the massive global flu outbreak or not, it might be helpful to browse the information put together by OSHA just in case. There are a few items contained in OSHA's guidance that might have some more generic applications to a non-pandemic flu season such as:

1. Develop a sick-leave policy that does not penalize sick employees for staying home. The upshot here is to keep sick employees away from the workplace so the rest of the workforce isn't infected. If your sick-leave policy is already effective and in place, make      Continue Reading...

Are These Common OSHA Violations Present in Your Workplace?
By: Donald Berner

Each year OSHA publishes a listing of the most commonly cited standards during the most recent fiscal year. For fiscal year 2012 (October 2011 to September 2012) the list contains some familiar standards from the fiscal year 2011 list. In fact, the 2012 list contains the same top ten cited standards, just in a slightly different numerical ranking order. The list for fiscal year 2012 is as follows:

  1. Fall Protection in the construction industry (29 C.F.R. 1926.501)
  2. Hazard Communication (29 C.F.R. 1910.1200)
  3. Scaffolding in the construction industry (29 C.F.R. 1926.451)
  4. Respiratory Protection (29 C.F.R. 1910.134)
  5. Lockout/Tagout (29 C.F.R. 1910.147)
  6. Powered Industrial Trucks a/k/a Forklifts (29 C.F.R. 1910.178)
  7. Ladders in the construction industry (29 C.F.R. 1926.1053)
  8. Electrical Hazards - Wiring (29 C.F.R. 1910.305)
  9. Machine Guarding (29 C.F.R. 1910.212)
  10. Electrical Hazards - Design (29 C.F.R. 1926.303)

This list should be instructive for employers with hazards of this nature in the workplace. These are commonly violated by employers and result in the issuance of citations by OSHA. Spending a little extra time in these areas can yield dividends next time OSHA visits your workplace.  


OSHA Adds Fall-Protection Resources
By: Donald Berner

OSHA recently established a website section devoted to providing construction-industry employers with fall-protection information.  Statistics show that falls are the most likely cause of on-the-job fatalities in the industry, and OSHA is making a concerted effort to reduce the number of fall-related incidents in the industry.

For employers, this new outreach website provides a single location with links to a wide variety of educational materials on the topic.  This includes short summaries of the various regulations related to fall-protection issues, as well as materials that can be used to train employees on these various concerns.  The OSHA fall-protection website section can be found here.

Heat Injuries and OSHA's General Duty Clause
By: Donald Berner

As most of you are painfully aware, it is incredibly hot outside.  This week the temperatures will continue to exceed 100 degrees.  While most of us understand that the intense heat poses a health risk, it is probably safe to say that we don't fully appreciate just how dangerous the heat can be.  Each spring OSHA issues press releases highlighting the dangers of working in the heat; however, there are no specific safety standards related to avoiding heat injuries.  This does not mean that your company won't receive a citation should heat related injuries occur in your workplace.

OSHA typically issues citations to employers when the employer violates some specific written safety standard established by regulation.  In addition to these written standards, OSHA may rely on the general duty clause within the OSH Act to issue citations.  The general duty clause requires employers to maintain a workplace free of recognized hazards.  In a recent decision, an OSHA citation alleging an employer violation of the general duty clause following an employee heat injury was upheld by an administrative law judge.  In the particular case, an employee died from a heat stroke.  The supervisor's failure to recognize the obvious symptoms of the heat injury resulted in OSHA's issuance of the citation.

The simple message to other employers is to ensure your workforce is adequately trained with respect to heat injuries and to apply as many safety measures as possible to avoid the onset of a heat injury.  A failure to do so may expose your workers to serious injury and your company to significant penalties. 

OSHA Targets Nursing and Residential Care Facilities
By: Donald Berner

OSHA recently announced a national emphasis program that targets nursing homes and residential care facilities.  The program is being implemented due to the higher than average injury and illness rates within the industry.  Employers falling within the covered NAICS Codes (used to be SIC Codes) should expect to see a visit from OSHA in the coming year.  For more information on the OSHA emphasis program click here

Drugs, Alcohol, and Falls: Workplace Safety Gone Bad
By: Donald Berner

Most employers with drug-and-alcohol-testing policies require employees suffering a workplace injury to be tested for drugs or alcohol.  It is common for these post-injury tests to be conducted at the same time the employee receives medical attention for the injury.  These types of testing requirements make sense and are generally a sound practice.  The key for employers is ensuring these policies are implemented in an effective yet responsible manner. 

From the category of its-too-crazy-to-be-made-up, a lawsuit on this topic was recently filed in Dallas.  In that case, an employee suffered a workplace injury after falling from an undisclosed height.  The employer had a practice of drug testing employees injured on the job and allegedly required a drug test.  The minor problem in this case -- the employer is alleged to have left the unconscious worker lying on the floor for two hours waiting on the drug test to be administered.  The employer then called 911, and the employee was taken by the paramedics to a hospital, where the employee later died.  The plaintiffs allege the long delay in receiving treatment led to the employee's death.  Click here for the story.

Keep in mind now that, as with any lawsuit, the initial claims made by the plaintiff are not always accurate, and in this case I hope that is exactly the situation.  For those of you that require a drug test following a workplace injury, make sure you always look first to the employee's health and safety before focusing on the testing procedure.

When 6 Months Really Means 6 Months
By: Donald Berner

In a recent decision, the Court of Appeals for the D.C. Circuit provided some clarity with respect to the statute of limitations contained within the Occupational Safety and Health Act.  Most of us believe that when a statute states any claim, or in this case any citation, must be made within six months of the event, what it really means is there is a six-month cutoff.  OSHA took a little different approach by issuing a series of citations to an employer for failing to keep adequate records over a several-year period.  When the employer pointed out the six-month statute of limitations, OSHA's response was that the violation remained ongoing due to the employer's failure to make the record.  After multiple levels of proceedings where OSHA's continuing-violation theory was accepted as valid, the case arrived at the D.C. Circuit Court of Appeals where it was promptly rejected by the Court.  For now, six months really does mean six months again.

OSHA Injury and Illness Summary Posting
By: Donald Berner

For those employers subject to the requirement, the deadline for posting the OSHA Form 300A is coming right up.  The OSHA Form 300A is the summary of job-related injuries and illnesses for the prior year.  The summary is required to be posted from February 1st through April 30th and must be located in the location where all other employment-related notices are posted by the employer.  For further information on OSHA recordkeeping requirements click here.

Don't Let Cold Weather Get You Into Hot Water With OSHA
By: Donald Berner

With the notion that cold weather is on its way, OSHA recently established a web page and issued guidance to employers with the goal of protecting workers during winter storms and from the cold.   For those employers with groups of employees that may become involved in winter storm cleanup efforts or might simply work outside in the elements, a review and implementation of some of OSHA's recommendations and suggestions will go a long way to help avoid citations related to exposing your workers to cold weather related risks.  You can find OSHA's guidance and a link to the web page here

Employer's Good Safety Record Equals Employee's Path to Hell
By: Donald Berner

With a title like this one you may be wondering if thoughts of turkey have gotten the best of me.  You might also wonder how a good safety record can be bad.  As with all good tales about employment law cases, the devil is in the details--in this case literally.  So here goes. 

It seems an employer had quite a run of work days without an accident or injury.  Most of you are probably thinking that's great news for the employer, and I would agree.  As with a lot of employer safety programs, this employer proudly displayed the number of days without an incident.  This display was done via a safety calendar and by the employees wearing stickers designating the number of days without incident.  So far so good.  As the number of days without incident continued to increase, it would seem like cause to celebrate.  And for most employees it was a positive thing.  But for one employee, concern and dread began to settle in.  As the number continued to grow and rolled over 600 days without incident, our worried employee began to highlight the impending doom of getting to 666 days without incident.  As the number continued to inch higher, the employee notified the employer that wearing 666--the "mark of the beast"--was forbidden by his religious belief. 

And this is where the real problem with this great safety record began.  As luck (good or bad, you be the judge) might have it, no safety incidents occurred and day 666 arrived.  The employee, in an attempt to avoid being condemned to hell, asked to be excused from wearing a sticker bearing the mark of the beast.  Rather than accommodate the employee, the employer      Continue Reading...

OSHA Digs In On Trenching Safety
By: Donald Berner

In an effort to assist employers with trenching safety concerns, OSHA issued a set of educational materials for employers to use with their employees.  These materials provide a very basic overview of trenching safety.  While they are a nice tool for employers to utilize in their training programs, they are not a replacement for a competent compliance person and an in-depth trenching safety program.  The press release with the links to the training aids can be found here.

Proposed Change to OSHA Reporting Rules
By: Donald Berner

Over the summer, OSHA proposed a revision to the current incident reporting rules.  At the present time, employers must report all fatalities or events leading to the hospitalization of three or more employees to OSHA within eight hours of the incident.  The proposed revisions would require the reporting of all fatalities and any employee hospitalization (one or more) within eight hours of the incident.  In addition, the proposed revisions would require the reporting of any amputation within twenty-four hours of the incident.  For purposes of the proposed rule, an amputation would be defined as "the traumatic loss of a limb or other external body part, including a fingertip."  The definition of an amputation requires the loss of some bone matter. 

The comment period for these proposed revisions to the incident reporting rule has been extended through October 28, 2011, to allow OSHA to gather more information from concerned entities.  Stay tuned as OSHA is likely to issue a final rule in the months following the closure of the comment period.

Cell Phones and SUV's
By: Donald Berner

Cell phones and driving are rumored to be a bad combination.  As you may recall, last fall OSHA published an initiative related to texting and driving.  See our blog entry here.  Today served as a reminder to me of why OSHA has undertaken this initiative.  Nothing like an SUV wandering all over the road and slightly off the road while its driver operates a smart phone to serve as such a reminder.  Thankfully, the SUV was driving only about 25 mph in a 40 mph zone since the driver's foot was also distracted by the smart phone usage and unable to maintain speed.  For those of you who have seen exactly this scene play out on the road, remember to make sure your organization has a policy in place regarding the usage of cell phones while driving (or operating heavy machinery).  And if you have a policy in place, think about how you might enforce such a policy.  A policy without enforcement is like having no policy at all.  The life you save just might be your own (or mine). 

More Apps to the Rescue
By: Donald Berner

In the midst of what has turned out to be one of the hottest summer seasons in a long time, OSHA has released a mobile phone app to assist employers and employees with the prevention of heat injuries.  The app utilizes weather data to calculate the heat index for the user's location, and then assigns a risk level for the type of heat conditions.  The tool also allows the user to review the various protective measures an employer may want to employ for that particular level of risk.  While the issuance is a bit late to be of much help this summer, it may be useful in future summer seasons.  It also signals the Department of Labor's (DOL) commitment to the usage/issuance of mobile phone applications that support the regulatory agenda of the various agencies within DOL.  For more information or to download the current version of the app click here.

To Record or Not: OSHA's New Interactive Tool to the Rescue
By: Donald Berner

Those of you that have grappled with OSHA recordkeeping requirements fear no more.  OSHA just released a new interactive tool to assist employers with recordkeeping compliance issues.  The tool requires an employer to answer a series of questions about the employee and the particular incident in question.  The process assists the employer in determining whether the injury/incident is recordable under the OSHA regulations.  The press release can be found here and the interactive tool can be found here.

OSHA Issues Further Guidance for Residential Fall Protection
By: Donald Berner

The Occupational Safety and Health Administration issued additional guidance for residential construction employers with respect to the newly changed fall protection requirements.  OSHA will use a three month phase in period during which they will issue "warning" materials to employers not in compliance with the newly heightened standards.  This warning will only be utilized for employers fully complying with the old requirements should they fall short of compliance with the new requirements. 

Click here to see the OSHA press release.

Don't Get Scorched by OSHA
By: Donald Berner

Summer is right around the corner.  For most of us, the arrival of warmer weather presents opportunities for fun in the sun.  There are, however, a significant number of workers that must work in what are sure to be extreme heat conditions.  For those employers exposing their employees to these conditions, it is important to take a few mintues to consider workplace safety issues presented by the heat.  Now is the time to make sure your employees are properly trained and properly protected from this hazard.  Employers that fail to address this concern may end up with a general duty clause citation from OSHA should a heat incident occur.  For more information check out OSHA's heat illness prevent page here.

Residential Construction Employers Beware
By: Donald Berner

In 1999, OSHA issued an interim enforcement policy providing residential construction with alternative measures for complying with the fall protection requirements applicable to all other construction situations.  OSHA is now eliminating this interim policy, which means employers in the residential construction arena will need to comply with the fall protection standards set out in 29 CFR 1926.500 et seq.  OSHA plans to begin enforcment activity pursuant to this change after June 16, 2011.  This grace period will allow employers a window of time to ensure compliance with the more-stringent fall protection standards.

For the full text of OSHA's directive click here.

Grain Industry Target of OSHA Emphasis
By: Donald Berner

OSHA has announced a new emphasis to protect the safety of workers in the grain-handling industry in Kansas.  Employers in this industry should expect an investigative effort by OSHA focused on their operations in the coming months.  The time to prepare for a potential OSHA inspection is now, not when the OSHA inspector arrives at your doorstep.  For more information on the emphasis and a recent letter from OSHA to grain industry employers, hit the links below. 



Texting and Driving
By: Donald Berner

Distractions in the workplace can be deadly.  Employees can injure not only themselves, but also co-workers, or even a customer or other innocent bystander.  Most employers have work place safety rules designed to eliminate (or at least reduce) workplace accidents.  With all that said, one area where employers (and the general public) seem to struggle is in eliminating distractions from vehicles. 

The Occupational Safety and Health Administration (OSHA) is charged with ensuring workplace safety for employees.  In a recently announced initiative, OSHA is now focused on making sure texting while driving for work is eliminated.  OSHA's initiative joins a long list of states enacting laws to prohibit texting while driving as well as several other federal government initiatives to restrict federal employees and commercial vehicle drivers from texting while behind the wheel.  In its open letter to employers, OSHA states that employers have a legal obligation to have a "clear, unequivocal and enforced policy against the hazard of texting while driving."  OSHA's position on the issue is very clear.  Employers should pay heed to this October 4, 2010, announcement and ensure texting while driving for company business is eliminated. 

For those employers with a good policy prohibiting distracted driving, you should already be in compliance with OSHA's policy initiative.  If you have not adopted a distracted driving policy, now would be a good time to draft and implement one.  A good distracted driving policy prohibits texting, emailing, and/or the use of a hand-held phone while driving.  It is important to make sure your written policy is in place and well-communicated to your      Continue Reading...

OSHA Penalty Changes
By: Donald Berner

A series of changes to the penalty calculation process used by OSHA will take effect next week.  These changes appear to be designed to increase the penalty amount assessed against employers.  OSHA is accomplishing this overall penalty increase by modifying the administration of the penalty structure currently in place.  These changes include increasing threshold for employer eligibility to receive a penalty reduction, by modifying the application of any discounts, and by increasing the penalty amounts. 

Modified Penalty Structure

  • The minimum possible penalty was increased to $500 for any serious violation.
  • A new penalty modifier of an additional 10% is now added for employers with a prior serious, willful, or repeat violation in the prior five year period.
  • A violation can now be the basis for a repeat citation for five years instead of three years.
  • OSHA will increase the penalty thresholds under its gravity based penalty model to range from $3,000 to $7,000 instead of the current $2,000 to $5,000.

Increased Eligibility Threshold

  • The good history reduction for employers will now require a clean history of five years to qualify for the discount as opposed to the prior rule of three years.
  • The discount for employer size will be reduced to a maximum discount of 40% as opposed to the prior maximum discount of 60%.
  • OSHA eliminated some of the elements of the good faith reduction.

Changes to Application of Discounts

Tips & Tactics -- Government Investigations
By: Donald Berner

One of the new realities for employers is the increased risk of a visit from an investigator working for the government.  These visits can come at any time, without warning, and may be conducted by any number of government agencies.  The typical visit for an employer is likely to be a wage and hour audit or an OSHA safety inspection.  While these (and any other agency visit) inspections are in widely varying areas, there are some common themes for employers to consider.  The worst time to prepare a workplace for an inspection/audit is when the inspector shows up at your door.  Here are a few quick thoughts should your workplace receive an unwanted visitor from the government:

  • Plan ahead:  The time to develop a game plan for an inspection is well in advance of the actual investigator's visit.  Responding to an inspection in "crisis mode" is highly likely to lead to mistakes or oversights.  The ultimate outcome is almost certainly not going to be as favorable to the Company as a situation in which a well-conceived plan is in place.
  • Communicate the Plan:  Make sure all management team members all the way down to the lowest level of management understands the Company's plan of action should an investigator arrive.  There is nothing worse than failing to implement a well-planned strategy because the individual meeting with the inspector doesn't know the strategy. 
  • Have a Core Team:  A group of individuals on the management team should be designated to handle the Company response to the arrival of any government investigator.  This group      Continue Reading...

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Don Berner, the Labor Law, OSHA, & Immigration Law Guy
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Boyd Byers, the General Employment Law Guy
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Jason Lacey, the Employee Benefits Guy
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