Category Archives: Occupational Safety and Health Administration

NASA’s Wardrobe Malfunction provides Valuable Reminder to Employers Back on Earth

Contributed by Suzannah Overholt, April 12, 2019

Astronaut on the moon. Elements of this image furnished by NASA

The first all-female spacewalk was planned for Friday, March 29, 2019. News outlets included the event in their coverage of women’s history month and the strides women had made in male dominated industries. However, the Monday before the spacewalk NASA announced that only one female would be able to participate because NASA did not have enough properly configured spacesuits for two women. Attempting to modify an existing uniform in the time before the spacewalk would have involved some risk to the astronaut who wore it. While a spacewalk was completed, the team consisted of a male and female astronaut, not two females. 

Events in space do not ordinarily trigger reminders of one of the most basic responsibilities and liability risks for employers – providing appropriate safety gear for their employees. However, the issue confronted by NASA was a very well publicized reminder to make sure to evaluate your workforce and ensure that you are providing appropriate safety gear.  

Employers are obligated to protect their employees from workplace hazards that can cause injury. That obligation includes providing and maintaining appropriate personal protective equipment (PPE) under certain circumstances as well as providing appropriate training to employees regarding when PPE is necessary, how to don, doff, adjust and wear the PPE, the limitations of PPE, and the proper care and maintenance of the PPE.

According to the U.S. Bureau of Statistics, in 2016 women made up 51.7% of the U.S. workforce, and there is a growing number of women are in the construction and manufacturing sectors. However, concerns have been raised that required PPE is not always available for female workers in those fields. Common examples are ill-fitting work clothes, including flame resistant clothing, harnesses, eye protection, hard hats, and gloves. The Occupational Safety and Health Administration (OSHA) and National Association of Women in Construction have renewed their alliance, which includes educating construction companies on hazards of particular concern to women in the construction industry, including PPE selection, sanitation, and workplace intimidation and violence. That being said, this issue impacts all industries and sometimes in different ways. For example, the health care sector has traditionally had a higher number of women workers. However, there are more men joining the health care sector workforce and so employers must take into consideration the different PPE considerations to ensure that there are appropriate sizes available for all employees, including the men.

The risks of not providing properly fitting PPE are twofold – the risk to the employee’s safety and the risk of liability to the employer. The risks to the employee are fairly obvious – an employee may be injured to an ill-fitting safety harness, get debris in their eye due to poorly fitted eye protection, be injured if too loose of work clothing gets caught in equipment, or as occurred to NASA, the PPE could not be safely used. While for most employers these issues will not become front page news, there are still significant risks including OSHA complaints, citations and penalties, increased injuries and worker’s compensation premiums, and liability under state and federal employment discrimination laws. Employers may also risk criminal charges – the Attorney General for Maine recently filed manslaughter charges against a contractor for the death of a roofer who allegedly fell because he was not wearing fall protection gear. Notably this was not the contractor’s first violation.

Employers should minimize their risk by assessing the PPE that is offered to their employees, ensuring that the range of sizes that is available meets the needs of the workforce. They should also regularly assess their workplaces to ensure that the appropriate PPE is required and being provided.

UPDATED 11/22/2017: Deadline to Electronically Submit OSHA Data

Contributed by Matthew Horn, November 21, 2017

BREAKING NEWS: In follow up to our blog from yesterday, OSHA issued a press release this morning extending the deadline to electronically report from 12/1 to 12/15. All other information in the blog remains unchanged.

On June 27, 2017, OSHA issued a press release announcing that it would be delaying the compliance date for its Rule requiring most employers to electronically submit their injury and illness data to OSHA. The press release pushed back the compliance date four months, from July 1, 2017 to December 1, 2017, so OSHA could review the Rule closely.

Dec1Just over two weeks later, OSHA issued another press release announcing that it would be launching its website allowing employers to submit their injury and illness data on August 1, 2017. On August 1, 2017, OSHA made good on that promise and launched its website, which is linked here. To date, despite OSHA’s promise to review the Rule closely, it has taken no action to roll back or delay the electronic reporting requirements, so the December 1st deadline remains.

Under the Rule, virtually all employers with twenty or more employees are required to submit their completed Form 300A for 2016 by December 1, 2017. In 2018, employers with twenty or more employees must submit their completed Form 300A for 2017 by July 1, 2018, and those employers with more than 250 employees must submit their Form 300 and 301s by that deadline, as well.

While we were hoping OSHA would roll back or delay the Rule, it appears that is not going to happen. Accordingly, all applicable employers would be well-served submitting their data online no later than December 1st.

OSHA Charges Ahead With Electronic Report Rule

Contributed by Matthew Horn, August 2, 2017

Electronic Reporting File_2On June 27, 2017, OSHA issued a press release announcing that it would be delaying the compliance date for its Rule requiring most employers to electronically submit their injury and illness data to OSHA. The press release proposed pushing the compliance date back four months, from July 1, 2017 to December 1, 2017, so OSHA could review the Rule closely.

Just over two weeks later, OSHA issued another press release announcing that it would be launching its website allowing employers to submit their injury and illness data on August 1, 2017. On August 1, 2017, OSHA made good on that promise and launched its website, which is linked here.

Under the Rule, virtually all employers with twenty or more employees are required to submit their completed Form 300A for 2016 by December 1, 2017. In 2018, employers with twenty or more employees must submit their completed Form 300A for 2017 by July 1, 2018, and those employers with more than 250 employees must submit their Form 300 and 301s by that deadline, as well.

Notably, despite moving forward with the launch of its injury tracking website, OSHA has yet to address the “review” of the Rule it promised in its June 27, 2017 press release. Accordingly, employers would be well-served to wait to submit their 300A data until shortly before the December 1, 2017 deadline to see if OSHA changes course on the Rule before that deadline. Mark your calendars.

Three Needless Deaths: Recognize Confined Space Dangers on Your Job Sites

Contributed by Patrick M. Sanders, July 24, 2017

Construction Site

Supervisor using walkie-talkie at construction site

On July 14, 2017, the U.S. Department of Labor’s Occupational Safety and Health Administration cited a contractor for 10 serious violations after the deaths of three workers who succumbed to toxic gases in a manhole on January 16, 2017.

Preventable safety failures led to the deaths of Elway Gray, a 34-year-old pipe layer, who entered the manhole – a confined space – and quickly became unresponsive; Louis O’Keefe, a 49-year-old laborer, who entered the hole in an attempt to rescue Gray; and Robert Wilson, a 24-year-old equipment operator, who followed to rescue his two fallen coworkers. Two other employees and a firefighter were also exposed to the toxic gases during rescue attempts but survived.

Post-incident atmospheric testing of the confined space revealed lethal levels of carbon monoxide and hydrogen sulfide. OSHA investigators issued Douglas N. Higgins, Inc. and its related contracting company, serious citations, totaling $119,507, in penalties.

The incident-related serious violations included failure to:

  • Purge or ventilate the confined space before entry;
  • Prevent workers from exposure to an asphyxiation hazard;
  • Provide necessary rescue and emergency equipment for employees that were overcome inside a permit-required confined space;
  • Develop and implement a written hazard communication program for a worksite on which employees were exposed to dangerous chemicals and gases;
  • Use a calibrated direct-reading device to test for toxic gases, creating an asphyxiation hazard;
  • Create and document the confined space entry permit;
  • Provide training to employees in the safe performance of their assigned duties in permit-required confined spaces; and
  • Provide a guardra­­­il around the manhole opening, exposing employees to a fall hazard.

Full citations may be found here.

OSHA Area Director Condell Eastmond’s comments were all too familiar: “Three employees needlessly lost their lives and others were injured due to their employer’s failure to follow safe work practices.”

This case should remind all employers that confined spaces within the workplace often present difficult and involved identification, training, written program management and compliance documentation retention issues.

What responsibility do companies have to ensure that their contractors protect their workers?

Those organizations that have a record of previous “serious” violations must be aware OSHA will rigorously enforce employee training, workplace safety information requirements, toxic workplace condition testing and all related rescue and emergency safety equipment regulations and will issue repeat, willful and, in extreme cases, criminal violations, should subsequent violations be documented by OSHA.

ACA Whistleblower Complaint Procedures

Contributed by Kelly Haab-Tallitsch, November 3, 2016

On October 11, 2016, the Occupational Safety and Health Administration (OSHA) issued the final rule creating procedures for handling whistleblower complaints under the Affordable Care Act (ACA).  The ACA prohibits employers from retaliating against employees who report alleged violations of the act’s health coverage reforms or who receives a premium subsidy or tax credit for purchasing individual health coverage through a state or federal exchange. A covered employer can receive a penalty if an employee receives a tax-credit or premium subsidy for coverage through an exchange. The final rule addresses the concern that the relationship between the employee’s receipt of a premium tax credit and the potential penalty imposed on an employer could create an incentive for an employer to retaliate against an employee.

whistleTo demonstrate unlawful retaliation under the ACA, an employee need only show that the protected activity was a contributing factor to an adverse employment decision—rather than the “but for” cause. An employer will then have to present “clear and convincing evidence” that it would have taken the same action even if the employee had not engaged in the protected activity.

Substantially similar to the interim rule on ACA whistleblower claims published in 2013, the final rule mirrors many of the provisions related to whistleblower protections under other statutes that OSHA enforces and includes procedures and time frames for employers and employees to appeal an OSHA decision.

Complaint Procedures

An employee must file a complaint within 180 days of the alleged retaliation. The complaint can be oral or written, made by telephone, in person or electronic means, and may be made in any language if the employee can’t file in English. Anyone can file a complaint on behalf of an individual, provided that individual agrees.

Once a complaint is submitted, OSHA must provide written notice to the employer, provide the employer and employee an opportunity to submit a response and meet with the investigator to present statements from witnesses, conduct an investigation, and issue notification of its findings. If OSHA finds reasonable cause to believe that retaliation has occurred, a preliminary order will be issued, which can include job reinstatement, lost wages, restoration of benefits, special damages (i.e. emotional distress) and attorneys’ fees and costs.

Either party may then request a hearing by a Department of Labor administrative law judge (ALJ) and an ALJ’s decision may be appealed to the department’s administrative review board.

Employer Action Steps

To reduce the risk of an ACA whistleblower claim, applicable large employers (as defined by the ACA) should:

  1. Ensure compliance obligations are adequately addressed;
  2. Identify ethics and legal compliance as a business priority;
  3. Implement and distribute a code of ethics that makes a commitment to compliance explicit;
  4. Include a well-publicized and effective internal complaint procedure; and
  5. Train supervisory staff! Make sure supervisors know what constitutes protected activity, retaliation, etc.

By taking the above steps, an employer can minimize chances employees will raise ACA whistleblowing claims and maximize chances that any such claims are raised and resolved internally.


Contributed by Jonathan Hoag, October 17, 2016

As we previously reported, OSHA postponed enforcement of its controversial post-accident drug testing rule from August 10, 2016 to November 1, 2016.  Now, with the November 1, 2016 deadline approaching, OSHA may extend its stay on enforcing the post-drug testing rule until December 1, 2016.

47506356 - alarm clock - deadlineOSHA initially delayed enforcement of the rule until November 1, 2016 because a lawsuit was filed in July 2016 by numerous parties seeking injunctive relief to prevent enforcement of the rule. OSHA agreed to postpone enforcement of the rule to allow the parties to brief the legal issues presented in the lawsuit. The legal briefing was completed in September 2016.  While the Judge was reviewing the case to determine if OSHA should be enjoined from enforcing its rule, OSHA claimed that the plaintiffs were only seeking injunctive relief on behalf of the parties to the lawsuit and not on a national basis.

On October 14, 2016, the Judge determined that the parties should further brief the issue as to whether the injunction sought was only on behalf of the parties to the lawsuit or if it would apply nationwide. The Judge will only agree to review the issue further if OSHA will agree to postpone enforcement until December 1, 2016. OSHA must decide by October 18, 2016 if it will agree to delay enforcement. It is likely OSHA will agree to delay enforcement. However, it is unclear whether the court will enter an injunction to prevent enforcement of the rule, and if an injunction is entered whether it will apply nationwide or only to the parties that filed the lawsuit.

Unfortunately, it is doubtful employers will receive clarity on this issue until close to the deadline when enforcement is to begin – no matter if that deadline is November 1, 2016 or December 1, 2016. As such, employers should continue with preparations to comply with OSHA’s new rule. For more in depth coverage, join us for a webinar on this topic on October 19, 2016 from 10:30 a.m. – 12:00 p.m. Or click here to register for an in-person seminar in Effingham, Illinois on October 20, 2016.

OSHA to Delay Enforcement of Electronic Recordkeeping Rule Until November 1, 2016

Contributed by Jonathon Hoag, July 14, 16

This is an update to our July 6, 2016 post regarding OSHA’s plan to enforce new rules concerning post-accident drug and alcohol testing.  In response to a lawsuit filed to block the August 10th implementation of OSHA’s new electronic recordkeeping rule (including the limits on post-accident drug and alcohol testing), OSHA announced yesterday that it will delay enforcement until November 1, 2016. There is no indication that OSHA will back away from its new stance on post-accident drug and alcohol testing, but enforcement will not begin until November 1, 2016.


Contributed by Jonathon Hoag, July 6, 2016

As we previously reported, the August 10, 2016 effective date for OSHA’s final electronic reporting rule is quickly approaching. The requirement to electronically submit data does not begin until 2017, but an important part of this rulemaking that goes into effect August 10, 2016 is the requirement for employers to implement a reasonable procedure to ensure accurate reporting of illnesses and injuries. The concern about possible underreporting was highlighted during the rulemaking process and post-accident drug and alcohol testing was specifically targeted as an area which could deter accurate reporting of injuries. The preamble to OSHA’s final rule on electronic reporting states that blanket post-accident drug and alcohol testing policies deter accurate reporting and may constitute retaliation for reporting an injury.

Injured personIronically, employers have a long-standing practice of implementing post-accident drug and alcohol testing policies to promote safety and reduce workplace accidents. Now, OSHA suggests that post-accident testing policies might lead to OSHA violations. OSHA’s current stance is that blanket post-incident drug testing policies deter proper reporting. OSHA advises that drug testing policies should be revised to only require post-incident testing to situations in which employee drug or alcohol use is likely to have contributed to the incident and for which the test can accurately identify impairment. To muddy the waters further, OSHA explained that employers do not need to specifically suspect drug use before testing, but there should be a reasonable possibility that drug use by the reporting employee was a contributing factor to the reported injury before requiring the employee to test. OSHA then added that drug testing that may be perceived as punitive or embarrassing to the employee is likely to deter injury reporting.

The only certain guidance OSHA provided on post-incident testing is that if the employer is required to test to comply with state or federal law, the testing policy is not prohibited by its final rule. However, if post-accident testing is not required by state or federal law, employers should expect that use of such testing will now be open to challenge and possibly subject to an OSHA violation. OSHA penalties are set to increase August 1, 2016, so this seemingly minor change to enforcement practices might result in significant penalties to employers.

OSHA – Now Doing Editorials​

Contributed by Matthew Horn

On July 22, 2015, OSHA issued an underground construction company in Texas six willful and nine serious citations with fines totaling $423,900, stemming from a trench collapse in February of 2015. While the citations and fine amount are not unusual under the new regime, the press release issued by OSHA following the issuance of the citations goes to great lengths to embarrass and harass the company, even identifying the company’s workers compensation insurer by name—presumably, in an atteyellow construction hatmpt to try and prevent the company from obtaining insurance in the future. See the press release here.

Going forward, employers should know that in addition to citations and fines, OSHA intends to add malicious press releases and editorials to its arsenal. Now more than ever, employers should take steps to ensure that they are prepared for when OSHA arrives at their facility or site in an effort to avoid being the subject of a similar press release.