In light of a recent decision from the Indiana Supreme Court, Indiana employers—and construction companies in particular—should review their contracts and subcontracts to determine if they have unwittingly assumed a duty of care for other entities’ employees. In Ryan v. TCI Architects/Engineers/Contractors, Inc. et al., the Court ruled that a general contractor’s “form contract” with its client caused it to assume a duty of care to keep a worksite safe for a sub-subcontractor’s employee—even though the general contractor’s subcontract placed the onus of securing employee safety on the subcontractor. — N.E.3d —, 2017 WL 148885 (Ind. Apr. 26, 2017). As a result of this ruling, a general contractor can potentially be liable to a subcontractor’s employee who suffers a workplace injury.
OSHA has now officially withdrawn the so called “Volks Rule” that had attempted to set a 5 year limitations period for OSHA Recordkeeping violations. The rule received its nickname from the D.C. Circuit Court case that held there was only a 6 month limitations period pursuant to the OSH Act, and the rule was OSHA’s attempt to undue that Circuit Court ruling by promulgating the new regulation in the waning days of the Obama Administration
OSHA has provided notice, in the context of an on-going federal lawsuit, (National Federation of Independent Businesses v. Dougherty, N.D. Tex., No. 16-2568, 4/27/17), that it has rescinded the interpretation letter and removed the guidance from OSHA’s Field Operations Manual (FOM).
Earlier this year, the U.S. House of Representatives voted to approve the Midnight Rules Relief Act by a vote of 238-184. This Republican-backed measure would amend the Congressional Review Act and allow Congress to overturn, en masse, any federal regulation enacted during the final year of a president’s term. If approved by the Senate and signed into law, the Act could have broad implications for any regulation passed in 2016, including, among many other workplace law regulations, the recordkeeping rule issued by the Occupational Safety and Health Administration (OSHA) and its related anti-retaliation provisions.
As you may or may not know, OSHA administers the whistleblower portions of about 22 federal statutes. Similar to the recent information from the SEC about problematic language in settlement agreements, OSHA, in its role as administer of the whistleblower program, has recently announced its new guidelines for approving settlement agreements for whistleblower actions.
The Kentucky Labor Cabinet’s Department of Workplace Standards, Division of Occupational Safety and Health Compliance has published its intent to adopt certain Federal OSHA Recordkeeping regulations, including the new electronic reporting and anti-retaliation provisions published in the May 12, 2016 Federal Register (view proposed regulations). States that have their own OSHA plan, such as Kentucky, are required to have OSHA programs that are at least as effective as Federal OSHA, and are consequently required to adopt and implement new federal standards, or a more stringent standard, within six (6) months of the adoption or amendment by Federal OSHA. This new rule in Kentucky is set to take effect on January 1, 2017.
OSHA has issued a new Fact Sheet for Combustible Dust Explosion Hazards. See link: https://www.osha.gov/Publications/OSHA3878.pdf
The Kentucky Occupational Safety and Health Standards Board will consider amending the state's rule, 803 KAR 2:412, at its annual meeting on May 10 at the Galt House Hotel in Louisville, according to the session's agenda. Currently, Kentucky requires fall protection for residential construction at 10 feet, but is considering changing the trigger height to six (6) feet to adopt the Federal OSHA requirement.
Most would agree that workplace safety is of the utmost importance. Accordingly, the Occupational Safety and Health Act of 1970 (“OSH Act”) was enacted for the purpose of ensuring that employers provide their employees safe working environments.
On September 4, the Whistleblower Protection Advisory Committee (WPAC) unanimously voted in favor of several revisions to the OSH Act that would expand protection for workers who are retaliated against for raising health and safety concerns at their workplace.