Employers will be facing higher penalties from the federal Occupational Safety and Health Administration (“Fed-OSHA”) in 2019. On January 15, 2019, Fed-OSHA announced that it plans to increase the maximum penalty an employer can be issued for serious and other than serious citations to $13,260, and the highest amount that can be issued for repeat and willful violations to $132,598. Fed-OSHA’s announcement regarding the increases can be found here: https://www.osha.gov/penalties/2019InflationAdjustments.pdf and a chart containing all increases by the agency is below:
With the threat of a partial government shutdown looming on December 21, employers are left wondering which government agencies will be impacted if the shutdown occurs. Presently, departments in the following areas will be impacted by a partial government shutdown: Agriculture, Commerce, Justice, Homeland Security, Interior, State, Transportation and Housing and Urban Development. Independent agencies like NASA and the Food and Drug Administration will also be restricted to essential personnel.
While it is not comparable to David Letterman’s Top 10 lists, at a recent industry gathering, OSHA announced its annual top 10 violations for fiscal year 2018 (October 1, 2017 through September 30, 2018). For those who have followed these lists in past years, there is a substantial amount of overlap but also new standards that have not made the list in the past.
OSHA issued a new Site Specific Targeting (SST) Plan effective October 16, 2018. Unlike prior versions, this new SST Plan utilizes the 2016 300A data that many employers electronically submitted in December 2017. The new SST Plan is, therefore, dubbed the SST-16.
House Bill 2 (“HB2”) was signed into law by Governor Matt Bevin and became effective in July 2018. Through HB2, the legislature enacted significant changes to multiple provisions of the Workers’ Compensation Act. One of the most significant changes in the statute is the portion related to injuries resulting from illegal, non-prescribed substances or prescribed substances in excess of prescribed amounts. Previously, if an employee underwent a drug test after an injury, the employer had to prove that the use of non-prescribed substances (illegal drugs or alcohol) was the proximate cause of the injury. The new workers’ compensation law shifts the burden of proof to the injured worker to prove such illegal substances or prescribed substances was not the proximate cause of the injury. This is a significant difference because the illegal or prescribed substance is now presumed to be the cause of the injury until rebutted by the employee.
Today, the U.S. Occupational Health and Safety Administration (OSHA) issued a standard interpretation clarifying its position on the new recordkeeping rule’s anti-retaliation provisions. OSHA’s memorandum essentially “rolls back” its enforcement of the anti-retaliation provisions, particularly concerning safety incentive programs and post-accident drug testing. Why is this important? Mainly because many employers struggled to understand the anti-retaliation provisions since they were published, in guidance materials accompanying the new regulations, in May 2016. Indeed, OSHA has gone to great lengths to explain the anti-retaliation provisions in the new rule’s preamble, with OSHA guidance and several memorandums. To be blunt, OSHA’s explanations have been extremely vague and confusing. But alas, the struggle to understand the anti-retaliation provisions is over … hopefully. Today’s interpretation states supersedes all the prior guidance on this topic.
The 11th Circuit Court upheld the Mar-Jac decision quashing a warrant to expand an inspection beyond the accident triggering the inspection. The decision demonstrates the willingness of at least one Circuit to carefully scrutinize OSHA's justification for expanding the scope of an Inspection.
We're daily seeing Unions and other Third Parties use Safety and OSHA Complaints to harm an Employer's reputation and compel union recognition or economic concessions. Now UNITE-HERE is portraying Marriott's "Go Green" effort as a danger to employees. We fear that employers are not seriously considering this potential public harassment either by checking safety efforts or making response plans in advance.
FP has prepared Frequently Asked Questions (FAQs) since Hurricane Katrina. Each year, we learn new things or of new problems and revise the FAQs further. We cover more than safety, although safety may be the longest section. Employees are injured and killed performing nonroutine clean-up and maintenance activities, including falls, carbon monoxide poisoning from portable generators, electrical, and bloodborne pathogens illnesses from filthy flood waters. We discuss leave, unemployment comp, wage-hour and a host of other issues. Please don't be caught unprepared.
As we remember and honor those that fell on 9/11 and in the years since, we should also commit ourselves and our businesses to better plan for disasters. Indeed, in recognition of the beginning of the storm season, September is National Preparedness Month, with OSHA, FEMA and others mounting campaigns to get businesses (and individuals) to pause, do a What-if Analysis, and then take steps to protect employees, maintain business operations, or restore them.