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Unanimous decisions from the Federal Mine Safety and Health Commission are rare, but on July 11, 2019, the Commission ruled 5-0 to reverse an Administrative Law Judge’s finding of a fall protection violation in Sims Crane because the ALJ improperly shifted the burden of proof. Vacating the decision before it, the Commission found that the ALJ focused upon Sims’s counterarguments without determining whether the Secretary proved his claims by a preponderance of the evidence. The Commission then held that the Secretary failed to establish that a danger of falling existed as a violation of section 56.15005 requires. It vacated the Secretary’s citation without remand.

Standard Operating Procedures (SOPS) have morphed from useful practical guidance to bewildering multi-page tomes which clash with the realty of how to do the job. More troubling, SOPs may be used as an excuse to not apply good judgment or hold employees responsible for safe performance. We'll discuss these challenges and basic adjustments.

When an inspector from the Occupational Safety and Health Administration (OSHA) shows up at your workplace, know this: everything—and we mean everything—that a manager or supervisor says at any point to the inspector will bind the company and may be used against the company to support a citation. 

Every presidential administration has its priorities, and President Trump’s is no different.  President Trump has put his stamp on the Occupational Safety and Health Administration (OSHA) by stalling, delaying, or modifying Obama Administration policies (think the anti-retaliation rule and the e-file accident report regulation). 

Excavations and trenches have become so commonplace on worksites that some employers and employees have developed a sense of complacency with some of the most basic requirements of excavation safety.  To counter this, the Occupational Safety and Health Administration (“OSHA”) initiated a National Emphasis Program (“NEP”) on Trenching and Excavation, on October 1, 2018, to increase OSHA’s education and enforcement efforts regarding trenching and excavation operations.  Under this NEP, OSHA Compliance Officers can inspect trenching operations whenever they observe an open trench or excavation, regardless of whether there is a violation. 

On June 11, 2019, a three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit issued an opinion vacating the Mine Safety and Health Administration’s (“MSHA”) 2018 rule (“2018 Amendment”) entitled, Examinations of Working Places in Metal and Nonmetal Mines, codified at 30 C.F.R. § 56/57.18002, see 83 Fed. Reg. 15,055 (Apr. 9, 2018).  In so doing, the D.C. Circuit ordered the reinstatement of MSHA’s January 23, 2017 version of the rule (“2017 Standard”), which revised the previously existing workplace examination standard at 30 C.F.R. § 56/57.18002.

Over the last couple of years, employee incentive programs have been under attack from the Department of Labor. However, OSHA and MSHA have undertaken their efforts against incentive programs in different ways.  In the preamble to the 2016 proposed amendments to 29 CFR § 1904.35, OSHA discussed how it could issue citations to employers based on workplace safety incentive programs should the program be found to discourage reporting of injuries. MSHA has been battling the issue through litigation with appeals still currently pending as explained more fully below. 

The Occupational Safety and Health Administration (OSHA) conducted an inspection of your facility.  OSHA issues a serious citation to your company for a machine guarding violation, despite the fact the OSHA investigator did not actually observe a plausible infraction.  Your company would like to contest the citation because it was not justified.  However, your company is not sure if it can afford to pay an attorney to fight the citation.  There may be relief. The Equal Access to Justice Act may provide your company with an avenue for having the government foot the bill for your company challenging the citation.

North Carolina law requires employers with a workers’ compensation experience rate modifier (“ERM”) of 1.5 or higher to “establish and carry out a safety and health program to reduce or eliminate hazards and to prevent injuries and illnesses to employees.”  Not just any program, however, will comply with the statutory requirements. 

Section 105(c)(1) of the Federal Mine Safety and Health Act (“Mine Act”) provides “No person shall discharge or in any manner discriminate against . . . or otherwise interfere with the exercise of the statutory rights of any miner.”  30 U.S.C. § 815(c)(1).  In Secretary on behalf of McGary et al. v. Marshall County Coal Co. et al., 38 FMSHRC 2006(Rev. Comm. Aug. 2016) & 40 FMSHRC 261 (Rev. Comm. March 2018), the CEO held a series of “Awareness Meetings” with the work force, specifically requesting that when employees filed anonymous hazard complaints to the Mine Safety and Health Administration (“MSHA”), they report those same conditions to the operator.  Complaints were filed with MSHA after these meetings and a hearing was held in front of an Administrative Law Judge (“ALJ”) to determine whether these meetings interfered with miners’ rights. 

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