Jan 2, 2019

OSHA Clarifies When Post-Accident Drug and Alcohol Testing is Permitted

Drug and Alcohol Testing

In an October 11, 2018 memorandum to Regional Administrators, OSHA clarified that 29 C.F.R. § 1904.35(b)(1)(iv), which prohibits employers from retaliating against employees for reporting work-related injuries or illnesses, does not prohibit post-incident drug testing. When the 2016 rule was originally promulgated, OSHA took the position that employers could not use “drug testing (or the threat of drug testing) as a form of adverse action against employees who report injuries or illnesses.” Instead, employers were limited to using drug testing only when there was a “reasonable possibility” that drugs or alcohol contributed to the workplace accident or injury. Under its… Read more


Nov 7, 2018

OSHA Court Case Shows Limits on Safety Inspections

OSHA Safety Inspections

A recent ruling by the Eleventh Circuit Court of Appeals could limit OSHA’s ability to search for other hazards when investigating an accident. Many employers have traditionally allowed OSHA inspectors to expand their inspection to areas in the workplace not directly related to the accident under investigation, leading them to identify other hazards that often result in additional penalties. However, a Georgia poultry plant challenged this practice when OSHA showed up to investigate an accident involving a worker being burned. An attorney for the chicken plant refused to allow the inspector to walk through the plant to examine the tools… Read more


Jan 2, 2018

OSHA’s Silica Exposure Standard Upheld on Most Grounds

OSHA's Silica Exposure Standard

On Friday, December 22, the U.S. Court of Appeals for the District of Columbia Circuit ruled on challenges to OSHA’s new silica exposure standard, rejecting all challenges by industry and one of the challenges by labor unions, but finding that OSHA was arbitrary and capricious in failing to offer good reasons for not including “medical removal protection” allowing doctors to recommend removal of workers at risk from silica exposure. North America’s Building Trades Unions v. Occupational Safety and Health Administration, case #16-1105, D.C. Cir. 12/22/2017. In its ruling, the D.C. Circuit also: Upheld the Silica Exposure Standard’s reduced Permissible Exposure… Read more


Nov 1, 2017

EPA Enforcement Action Signals Heightened RMP Oversight

Chemical Storage Sign

In August, EPA announced a Consent Order with ChemArt Company of Lincoln, Rhode Island to correct alleged violations of EPA’s Risk Management Program (RMP) under the Clean Air Act.  The Consent Order included a civil penalty of $221,326 and a supplemental environmental project (SEP) requiring ChemArt to reduce its stockpile of hazardous materials, including chlorine, and to update manufacturing equipment to reduce the likelihood and consequences of a release. In the waning days of the Obama Administration, EPA issued a final rule updating the RMP and imposing new requirements.  On June 14, the Trump Administration EPA issued a final rule… Read more


Oct 4, 2017

OSHA’s Enforcement of the Respirable Crystalline Silica in Construction Standard: What to Expect

OSHA's Silica Exposure Standard

On September 23, 2017, the Occupational Safety and Health Administration (“OSHA”) began enforcement of the new respirable crystalline silica in construction standard, codified at 29 CFR § 1926.1153. This standard establishes a new 8-hour time-weighted average Permissible Exposure Limit (“PEL”) of 50 μg/m3, an action level of 25 μg/m3, and a “host of ancillary requirements.” In a recent letter of interpretation, Thomas Galassi, Acting Deputy Assistant Secretary to OSHA Regional Administrators, announced that for the first thirty (30) days of enforcement, “OSHA will carefully evaluate good faith efforts taken by employers in their attempts to meet the new construction silica standard.”… Read more


Sep 5, 2017

Should You Evacuate Your Workplace During Hurricane Irma?

Hurricane Damage

During your preparations for the oncoming Hurricane Irma, you may be trying to decide whether to leave some employees in place at your facility or to evacuate the entire workforce.  The question may be asked, what does the law require?  Like so many other questions during an emergency, the answer likely is:  “good judgment.” There are no specific OSHA regulations requiring for employees to stay or evacuate during a hurricane.  OSHA does, however, require that employers provide a safe workplace and working environment for employees. During a hurricane, that may mean evacuating employees from the facility in order to keep… Read more


Aug 8, 2017

OSHRC Vacates OSHA Traffic Injury Citations Against JH Traffic Control

Think Safety First

Did you know that an employer must inform the Occupational Safety and Health Administration (“OSHA”) within 24 hours after certain types of work-related injuries to an employee? In a recent ruling, Sec’y of Labor v. JH Traffic Control Co., LLC, an administrative law judge of the U.S. Occupational Safety and Health Review Commission (“OSHRC”) upheld a $2,000 penalty against an employer for failing to notify OSHA of an accident involving one of its employees. On the evening of September 22, 2015, an employee of Boise, Idaho-based JH Traffic Control Co., LLC was seriously injured and hospitalized after being struck by… Read more


Jan 24, 2017

Is Your Company’s Drug Testing Policy Compliant with OSHA’s New Rules?

Drug Test

Authored by Darren Rowles and Scott Cahalan Occupational Safety & Health Administration (“OSHA”) requires that employers inform employees about how to report occupational injuries and illnesses.[1]  OSHA recently updated its rules to clarify that the reporting method required by employers must include (1) a “reasonable procedure” for employees to report work-related injuries and illnesses, and (2) not discriminate or retaliate against employees who report such injuries or illnesses.[2] A procedure is unreasonable if it would deter or discourage a reasonable employee from accurately reporting a workplace injury or illness.[3] OSHA’s rationale for the new rules is to encourage employees to… Read more


Mar 28, 2016

Supreme Court Upholds $5.8 Million Judgment for Employee Time to Change Into and Out of Safety Equipment

OSHA Issues Final Rule With More Stringent Silica Exposure Limit On March 24, 2016, the Occupational Health and Safety Administration (OSHA) issued a final rule, which among other things, significantly reduces the permissible exposure limit (PEL) for workers’ exposure to respirable crystalline silica from 100 micrograms per cubic meter of air (averaged over an 8-hour shift) to 50 micrograms per cubic meter.  The new OSHA rule impacts a wide range of industries including construction, manufacturing, oil and gas production, and railroads.  In addition to the more stringent PEL, the new rule includes monitoring, training, record-keeping, housekeeping, and other requirements for… Read more


Jun 23, 2015

Chemical Safety Alert On Implementation of “Inherently Safer Technology” Issued by OSHA and EPA

On June 9, the Occupational Safety and Health Administration (OSHA) and the Environmental Protection Agency (EPA) issued an alert containing agency guidance for voluntary measures that can be taken to reduce risks and improve safety at chemical plants.  The alert is the first step in a three-step process outlined to implement Executive Order (EO)13650, issued by President Obama on August 1, 2013, in response to the fertilizer plant explosion in West, Texas that killed 14 people and injured about 200 others.  The next two steps will be formal agency guidance and then, after consideration of feedback from the alert and… Read more