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Workplace Safety and Health Law Blog

Posts from February 2014.

Periodically, I blog on the need to avoid knee jerk decisions about whether employees with a disability can perform the essential functions of the job. The employee may or may not be able to perform the essential functions of the job, but if the employer fails to engage in their individualized analysis and document their consideration of accommodation options, how will they defend their decision if challenged? According to the EEOC’s Complaint, the ...

Warehouses and distribution centers (DC’s) are not OSHA’s most frequently inspected workplaces and do not present the complex compliance issues presented by some manufacturers or refineries. But that does not mean that an OSHA inspection will not result in citations and dangerous Repeat exposure, or costly abatement actions. DC's are a great example of employers who may not realize that OSHA’s evolving enforcement positions have upped their legal exposure and may catch them out of compliance.

Allen Smith, J.D., the manager of workplace law content for SHRM. ( @SHRMlegaleditor) recently asked three attorneys, including me, to set out our wishes and cautions for OSHA in 2014, and then wrote a good (and short!) article. My responses are below, along with some comments from some construction safety experts, but please read Allen’s complete article. Allen generates good content.

Most retail employers, even large companies with hundreds of branches, do not much worry about being inspected by OSHA; let alone cited. It’s not that these employers are disinterested in their employees’ safety, it’s just that they have rarely experienced and OSHA visit, and with the exception of ergonomic issues at grocery stores, retail stores don’t show up on many of OSHA’s various target lists. While understandable, this is an increasingly dangerous attitude. Let’s review a few facts which show that retailers are more at risk for big dollar OSHA penalties than more seemingly “dangerous” industries such as construction. Why?

An EEOC “systemic” investigation can be as miserable as a class action lawsuit for employers. As we have discussed before, the EEOC has encouraged its management and investigators to scrutinize single claimant EEOC charges for possible expansion to an burdensome corporate wide examination of hiring, promotion or other practices. In FY 2013, the EEOC began using it’s “Systematic Watch list,” a software application designed to identify charges and litigation involving the same issues against the same employer throughout the country. Last year, OSHA rolled out a similar internal IT system to look for citation patterns in companies with numerous locations. Likewise, OSHA is slowly using its Severe Violators Enforcement Program (SVEP) to address an entire company because of one site’s transgressions.

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