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Workplace Safety and Health Law Blog

Posts from November 2013.

Although Americans have celebrated some sort of Thanksgiving since 1661, Abraham Lincoln established Thanksgiving as a national holiday by proclamation on November 28, 1861. The Thanksgiving holiday takes on more meaning when one considers that an American people so exhausted by war, nonetheless gathered together to offer thanks.

EHS Today just reported that the Philadelphia District Attorney is taking the unusual step of charging two contractors for crimes ranging from multiple murder and manslaughter charges to risking a catastrophe as a result of the fatal collapse of the Philadelphia building last June, that killed 6 people and injured 14.

Cases under the ADA are fact specific. Often it is difficult to find clear cut standards for determining if an employee is qualified to perform the essential functions and if an accommodation is reasonable. In Attiogbe-Tay v. Southeast Rolling Hills LLC, a court concluded that a nurse who returned to work at a senior living facility was no longer qualified because of restrictions on squatting, kneeling and lifting. The Court also held that six additional weeks of leave was not a reasonable accommodation. The problem arose when the employee returned from 12 weeks of FMLA Leave for knee-replacement surgery. The nurse provided a note from her physician indicating that she could not kneel, squat or lift more than 50 lbs., and asked for more leave or other accommodations. The employer replied that it could not accommodate her by providing an additional six weeks of leave or by allowing her to seek assistance from coworkers when she had to lift or move a patient.


I will admit that I do not often think in terms of looking for “happiness” at work. My self-made World War II Vet dad raised me to focus on responsibility and to not expect easy roads. Nevertheless, is it unrealistic to talk about “happiness” at work. We probably define our goals by different terms, but at the end of the day, are we not all searching for happiness? Last spring I attended a series on “The Philosophy of Happiness” taught by Marist High School teacher and future Ph.D, Eric Heintz. Eric applied rigorous analysis to an otherwise “touchy feely” concept. He explored philosophical, physiological, and religious factors influencing happiness, and the methods by which we have sought this elusive state for thousands of years. It turns out that developing “a philosophy of happiness” may be a more orderly and rigorous pursuit than often portrayed. I came away from the lectures believing that we have a responsibility to seek to be happy; in large part because of the benefits to society.

The Dallas Buyers Club, just opened in limited cities, it’s the largely true story of a thoroughly unlikeable hard ass Texas oil worker at the beginning of the 80’s AIDS crisis, who learns that he has full blown AIDS (from wild heterosexual behavior). The movie is amazing. It’s not “political.” Rather, it manages to blend tragedy, comedy and true story into a story that puts a face on an incredibly brutal time. Matthew McConaughey’s performance is a possible Oscar winner. My hospital administrator wife and I talked about the movie for hours.

The Occupational Safety and Hazard Administration has announced a proposed rule which will require establishments with 20 or more employees in certain industries with high injury and illness rates to submit electronically their summary of work-related injuries and illnesses to OSHA every year. The change may affect between 450,000 and 1,500,000 sites. The first proposed new requirement is for establishments with more than 250 employees (and who are already required to keep records) to electronically submit the records on a quarterly basis to OSHA.

Almost 4.1 million workers missed work last January because of illness. The peak flu season generally lasts through March, and in some years over 15 million workers have missed work due to illness during that time. These absences place a tremendous economic burden on employers and employees and their families. As a result, many states and municipalities have passed or are considering the passage of laws requiring paid sick time.

One of my focus areas is combustible dust in the workplace. As I have written before, an extraordinary range of common products can cause an explosion and deflagration (pressure wave) under the right circumstances. One occasion is when a well meaning employer decides to clean that dust accumulation on overhead beams, ductwork and lights. This material is difficult to reach and has never presented a problem, so the employer decides to use pressurized air to blow off the dust. The dust cloud ignites and we have a combustible dust event. And any combustible dust event will be bad.

OSHA has announced a proposed rule which will require establishments with 20 or more employees, in certain industries with high injury and illness rates, to electronically submit their summary of work related injuries and illnesses to OSHA every year. The change may affect between 450,000 and 1,500,000 sites. Currently, OSHA uses a list of 160,000 employers to require approximately 80,000 employers per year to submit data as part of its OSHA Data Initiative (ODI). The Department of Labor’s Bureau of Labor Statistics (BLS) approaches approximately 250,000 sites per year as part of its Summary Of Occupational Injuries and Illnesses (SOII). OSHA uses its data to target certain industries or establishments for inspections and other initiatives.

I recently read an article stating that over one-half of 250 HR respondents thought that the traditional employee survey is dead. Most respondents felt that the future of employer research was “qualitative” rather than “quantitative,” and 80% believe that mobile technology will become the most common way for employees to voice their opinions.

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