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Workplace Safety and Health Law Blog

Posts from January 2014.

Safety professionals routinely have to respond to or try to prevent various types of employment claims. Why you may ask? Partly because the supervisor and employees figure that “regulations are regulations,” so the safety dude probably knows about EEOC requirements and anything that smacks of weird regulatory stuff. Also, safety professionals often are accessible to employees and may learn of issues before other members of management. Finally, designing job descriptions and JSA’s often involves ADA considerations, as does determining if an employee can return to duty following a workplace injury. Safety professionals are also front line troopers in avoiding and managing employment law claims.

OSHA is investigating its Compliance Officer who led the highly visible investigation of and citation of SeaWorld after a trainer was killed by a whale. I have linked to news reports which report that the Compliance Officer was photographed attending the premier of the documentary “Black Fish” at the Sundance Film Festival. Unfortunately, for the Compliance Office, the film “Black Fish” takes a critical look at SeaWorld. One news source also states that while attending the film festival in Park City, Utah, the OSHA Compliance Officer shared a rental house with the filmmakers and former SeaWorld employees who appear in the documentary. The Black Fish Associate Producer reportedly responded that the Compliance Officer “had nothing to do with the production of the film.” Still, how’s it look to the public? As businesses have painfully learned, appearance matter and sometimes the truth is far less interesting.

Construction employers have made progress in managing individual employees and crews at multiemployer sites. Similarly, although mistakes still occur, we’ve got over 40 years experience complying with OSHA on the shop floor.

I don't want to count my chickens before they hatch, but this week the mining industry received a late Christmas present in the form of proposed secured funding for FY 2014 state grants program. You may recall my brief mention of MSHA's proposal to de-fund the state grants program and shift the allocated funds to the enforcement budget in my prior posts - "Tri-State Meeting is a Success" and "It's Not About Safety, It's About Compliance". Essentially, the state grants program provides funding to states (typically government agencies and non-profits) to provide training to miners in that state. From my experience, there is a huge benefit to mine safety based on a focus on and committment to training, and the state grants program is a big part of that in many states.

Recently, at the SE Mine Safety and Health Conference, Sam Pierce, the new District Manager for the Mine Safety and Health Administration's (MSHA) Southeast District, provided the mine industry with a two-page handout titled "ABC's of Inspecting." (Attached below). Mr. Pierce indicated that he has distributed this to the field offices in the SE District and expects his inspectors to live up to the principles outlined in the handout. Mr. Pierce should be applauded for his efforts to improve MSHA's inspection process by setting out common sense guidance for MSHA Inspectors. Beyond its undoubted usefulness for Inspectors, however, mine operators should take time to review the handout and ensure that these tools are being incorporated into day-to-day operations at their facilities. While most mine safety professionals I have met are already doing the things I discuss below, your committment to health and safety is a daily task and there is always room for improvement.

On December 23, 2013, the Federal Mine Safety and Health Review Commission ("Commission") issued its decision in a case resulting from the explosion that occurred at the Sago Mine in 2006. MSHA alleged that the mine operator's failure to immediately notify (within 15 minutes) MSHA of the accident (as required by 30 C.F.R. § 50.10). The dispute in this case was whether the Inspector's designation of high negligence and unwarrantable failure was ...

Going into 2014, OSHA is continuing its focus of inspecting and, when alleged violations found, citing employers under its recordkeeping standard. Proper recordkeeping has become more critical to employers since OSHA recently issued a proposed rule to publish, in certain cases, the injury and illness data provided by employers.

The recent “Polar Vortex” has stunned even snow-hardened Minnesotans. I became concerned about worker safety in this brutal cold when I stopped late one night to pump gas on my way back to Atlanta from out of state trial prep. Thermometers showed it as seven degrees but with the substantial wind, it was well below zero. I nearly froze pumping gas. When I arrived the next morning at a rental car garage, it was obvious that despite the attendants wearing more winter clothes than Ralhie’s brother in the Christmas Story, they were suffering in the shade and wind. Imagine the injury potential for a construction worker, lineman or any employee working in the cold.

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