Workplace Safety and Health Law Blog

Federal Mine Safety and Health Review Commission Issues Unanimous Decision Vacating Fall Protection Citation Unanimous decisions from the Federal Mine Safety and Health Commission are rare, but on July 11, 2019, the Commission ruled 5-0 to reverse an Administrative Law Judge’s finding of a fall protection violation in Sims Crane because the ALJ improperly shifted the burden of proof. Vacating the decision before it, the Commission found that the ALJ focused upon Sims’s counterarguments without…
Don’t Know What You Got (Till It’s Gone): Is OSHA Required to Give Managers and Supervisors Their Rights Before Interviewing Them? When an inspector from the Occupational Safety and Health Administration (OSHA) shows up at your workplace, know this: everything—and we mean everything—that a manager or supervisor says at any point to the inspector will bind the company and may be used against the company to support a citation.  Two Examples Imagine an OSHA inspector…
Every presidential administration has its priorities, and President Trump’s is no different.  President Trump has put his stamp on the Occupational Safety and Health Administration (OSHA) by stalling, delaying, or modifying Obama Administration policies (think the anti-retaliation rule and the e-file accident report regulation).  President Trump’s deregulatory agenda also has impacted OSHA’s staff.  As reported in Politico, the number of inspectors working for OSHA decreased this past year, resulting in the fewest inspectors in the…
Excavations and trenches have become so commonplace on worksites that some employers and employees have developed a sense of complacency with some of the most basic requirements of excavation safety.  To counter this, the Occupational Safety and Health Administration (“OSHA”) initiated a National Emphasis Program (“NEP”) on Trenching and Excavation, on October 1, 2018, to increase OSHA’s education and enforcement efforts regarding trenching and excavation operations.  Under this NEP, OSHA Compliance Officers can inspect trenching…
On June 11, 2019, a three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit issued an opinion vacating the Mine Safety and Health Administration’s (“MSHA”) 2018 rule (“2018 Amendment”) entitled, Examinations of Working Places in Metal and Nonmetal Mines, codified at 30 C.F.R. § 56/57.18002, see 83 Fed. Reg. 15,055 (Apr. 9, 2018).  In so doing, the D.C. Circuit ordered the reinstatement of MSHA’s January 23, 2017 version of the…
Over the last couple of years, employee incentive programs have been under attack from the Department of Labor. However, OSHA and MSHA have undertaken their efforts against incentive programs in different ways.  In the preamble to the 2016 proposed amendments to 29 CFR § 1904.35, OSHA discussed how it could issue citations to employers based on workplace safety incentive programs should the program be found to discourage reporting of injuries. MSHA has been battling the…
Will OSHA Pay Your Attorney’s Fees for Fighting an Improper Citation Under the Equal Access to Justice Act? The Occupational Safety and Health Administration (OSHA) conducted an inspection of your facility.  OSHA issues a serious citation to your company for a machine guarding violation, despite the fact the OSHA investigator did not actually observe a plausible infraction.  Your company would like to contest the citation because it was not justified.  However, your company is not…
Are North Carolina Employers Required to Have a Written Safety and Health Program? North Carolina law requires employers with a workers’ compensation experience rate modifier (“ERM”) of 1.5 or higher to “establish and carry out a safety and health program to reduce or eliminate hazards and to prevent injuries and illnesses to employees.”  Not just any program, however, will comply with the statutory requirements.  What Is an ERM? ERMs provide a comparison of an employer’s…
D.C. Circuit Court of Appeals Provides Little Guidance on MSHA 105(c) Interference Test Section 105(c)(1) of the Federal Mine Safety and Health Act (“Mine Act”) provides “No person shall discharge or in any manner discriminate against . . . or otherwise interfere with the exercise of the statutory rights of any miner.”  30 U.S.C. § 815(c)(1).  In Secretary on behalf of McGary et al. v. Marshall County Coal Co. et al., 38 FMSHRC 2006(Rev. Comm.…
April 28, 2019 is World Day for Safety and Health at Work. Fisher Phillips proudly celebrates the safety of all workers with our clients. Here’s a short video – Fisher Phillips Safety – regarding our shared commitment to employee safety. As we pause to reflect this week on worker safety, keep in mind these simple tips to improve your safety and health program. Fully train all employees prior to starting work. Conduct refresher training every…