DO NOT sacrifice employee safety for productivity

Photo by Milo McDowell on Unsplash

The Verge reports that workers at an Amazon distribution facility are “forced to pee in bottles or forego their bathroom breaks entirely because fulfillment demands are too high.”

While this is horrible, and demeaning, it’s still just employees peeing in bottles. It’s not THAT big of deal? Right?

Wrong.

OSHA resources to protect healthcare workers

Photo by Natanael Melchor on Unsplash

You might think that construction workers or manufacturing employees have the highest rate of workplace injuries. To the contrary, however, it’s healthcare workers.

On average, U.S. hospitals recorded 6.8 work-related injuries and illnesses for every 100 full-time employees, nearly twice the rate for private industry as a whole. The numbers are even higher for nursing and residential care facilities.

The most typical injuries include overexertion and repetitive stress; slips, trips, and falls; contact with objects; workplace violence; and exposure to harmful substances (including needle sticks).

Thankfully, if you are healthcare employer, OSHA has myriad publications to help.

Do you know what to do when an employee dies on the job?

It’s news an employer never wants to deliver.

“I’m sorry, but your spouse (or partner, child, or other family member) had an accident at work and unfortunately passed away.”

But it happens. In fact, according to OSHA it’s happened 357 times already this year.

Indeed, it happened just yesterday, at Cleveland State University. A piece of sheet metal fell and killed a construction worker.

OSHA, what say you about Michael Phelps vs. Shark?

This week is Shark Week on the Discovery Channel. And the marquee event of this year's Shark Week was Olympic swimmer Michael Phelps "racing" a great white shark. I say "racing" because Phelps did not race an actual shark. Instead, he swam against a CGI shark based on a previously recorded shark. To create the CGI, the show had to record a shark swimming in a straight line for a pre-determined distance. And, since great white sharks are not known for their trainability, the job to lure the straight-line swim fell to this guy.

Don't do this at home. #SharkWeek pic.twitter.com/hgOF0905aq

— Shark Week (@SharkWeek) July 24, 2017

OSHA suggests employer best practices for anti-retaliation programs

The Occupational Safety and Health Administration has published recommended best practices to protect from retaliation employees who report workplace safety or other concerns under any of the 22 statutes OSHA enforces.

The document, entitled, Recommended Practices for Anti-Retaliation Programs [pdf], outlines five key elements of an effective anti-retaliation program:

Common sense (sort of) prevails in Ohio over gun-owner discrimination law

Last week, I reported on Ohio Senate Bill 199 / Sub. House Bill 48, which would have elevated “concealed handgun licensure” to a protected class under Ohio’s employment discrimination law, on par with race, color, religion, sex, military status, national origin, disability, age, and ancestry.

My Twitter feed absolutely exploded with confusion and outrage. Some of the better replies:

Federal court denies injunction against new OSHA retaliation rules

Stan Musial, Wade Boggs, Rod Carew, Honus Wagner, Jimmie Foxx, Joe DiMaggio. Six of the greatest hitters in the history of baseball. And all ended the careers with batting averages under .333. If you’re a baseball player, one out of three places you among the all-time greats. If you’re the Department of Labor, however, it’s not so good.

The DOL has already taken two big losses this month (first its Persuader Rule, and then its Overtime Rule), so you’ll forgive it if it’s not overly jubilant about closing November with a much needed win. Yet, a win is a win, and at this point the DOL will take what it can get from federal judges in Texas.

Feds publish a Halloween trick for employers

Have you seen Worker.gov? It is a how-to manual for employees to file charges with the full gauntlet of federal labor-and-employment agencies―EEOC, NLRB, OSHA, and DOL Wage-and-Hour Division.

OSHA doubles down against retaliation

OSHA has had a busy October.

First, it announced that it has delayed enforcement, until December 1, of the anti-retaliation provisions of its injury and illness tracking rule.

According to OSHA, “The anti-retaliation provisions were originally scheduled to begin Aug. 10, 2016, but were previously delayed until Nov. 10 to allow time for outreach to the regulated community.” While I hate to be appear cynical, I can’t help but think that the pending lawsuit challenging the legality of these rules has something to do with this delay.

Second, even though OSHA keeps delaying these rules, it continues its efforts to educate employers and employees about them. On October 19, OSHA published both a memorandum and example scenarios interpreting these new anti-retaliation provisions.

Will OSHA’s new whistleblower rules invalidate your settlement agreement?

When an employer presents an agreement to an employee ancillary to the separation of that employee’s employment, or settles a claim asserted by an employee, part of the bargain for which the employer is paying is finality. Yet, over the past couple of years, the federal government has made this finality harder and harder to achieve.

Confidentiality, non-disparagement, and other “gag” provisions in employee separation and settlement agreements have been under attack by various federal agencies, including the EEOC and the NLRB. Now, OSHA also has joined the fray.

OSHA's new Whistleblower Investigations Manual creates a huge burden for employers

Image via Lifehack.org
http://goo.gl/sn/VO1H

We typically think of OSHA in terms of workplace safety. Safety, however, is only a small part of what OSHA does. In fact, in addition to guarding our nations’ workers from workplace hazards, OSHA also enforces the anti-retaliation provisions of a veritable alphabet soup of federal statutes, such as the Sarbanes-Oxley Act, the Affordable Care Act, and the Clean Air Act, and the Wendell H. Ford Aviation Investment and Reform Act of the 21st Century (really, that’s a thing).

For most of those OSHA-enforced anti-retaliation statutes, OSHA has made employers’ anti-retaliation compliance a whole lot more difficult.

Hey, look, it’s me on the Channel 5 news!

Yesterday, I had the pleasure of an interview with Megan Hickey of Cleveland’s Channel 5. We talked about OSHA’s new fines that took effect yesterday.

 

OSHA says “negative” to post-accident testing

Buried in OSHA’s impending final rule on electronic reporting of workplace injuries and illnesses is this little nugget. OSHA believes that you violate the law if you require an employee to take a post-accident drug test. Let me repeat. According to OSHA, you violate the law if you automatically drug test any employee after an on-the-job accident.

Allow me to pause while this sinks in.

The attack on the NLRB's new joint-employer standard intensifies

Last week was a good week for opponents of the NLRB’s new, and more liberal, joint-employer standard, announced last summer in Browning-Ferris Industries of Calif. 

Does OSHA provide a defense for employee misconduct? It depends.

As the saying goes, you can’t teach stupid. No matter what safety measure you put in place, your employees will do stupid things at work, and sometimes they will get hurt.

OSHA’s penalties are on the rise

Today’s post originally appeared on Meyers Roman’s Ohio OSHA Law Blog, but it’s worth reprinting for my readers.

---

Have you subscribed to our new OSHA blog? If not, what are you waiting for?

Subscribe by email here, or by RSS here.

---

Earlier this week, President Obama signed into law the Bipartisan Budget Act of 2015. On its surface, it funds the federal government through 2017 and prevents any federal shutdowns during that time. Employers that read the fine-print, however, might be in for an OSHA-related shock.

John Oliver on OSHA (and a not-so-subtle shout-out to my firm’s new OSHA blog)

On this week’s Last Week Tonight, John Oliver gives OSHA a pass on its slack investigations of North Dakota oil field accidents. He blames OSHA’s inactivity on its lack of resources coupled with the oil companies’ use of subcontracted employees.

Announcing the launch of the Ohio OSHA Law blog

It’s with tremendous pride that I announce the launch of the Ohio OSHA Law blog. It is the second labor and employment blog published by Meyers, Roman, Friedberg & Lewis.

I like to think of myself as a blogging evangelist, and I am beyond pleased that my colleagues have picked up my blogging challenge.

For an agency as potentially devastating as OSHA can be for employers, OSHA often flies under the radar. Yet, all it takes is the complaint of one disgruntled employee, or one unpreventable injury, to bring an OSHA investigator your door. And, once they arrive, you can sure they won’t leave without telling you have to open your checkbook. The results of an investigation can be financially devastating. Click over to OSHA website for a snapshot of how high a citation can reach.

You need to educate yourself about OSHA, and bring your business into compliance before OSHA shows up at your door. So, do your business (and me) a favor and head over to OhioOSHAlaw.com for all of your workplace safety updates.

The time for your safety audit is now.

According to data released last week by the Bureau of Labor Statistics, the number of workers killed on the job as a result of slips, trips, and falls rose in 2014 by nearly ten percent.

Here are some the key findings:

• The number of fatal work injuries in private goods-producing industries in 2014 was 9 percent higher than the revised 2013 count but slightly lower in private service-providing industries. Fatal injuries were higher in mining (up 17 percent), agriculture (up 14 percent), manufacturing (up 9 percent), and construction (up 6 percent). Fatal work injuries for government workers were lower (down 12 percent). 
• Falls, slips, and trips increased 10 percent to 793 in 2014 from 724 in 2013. This was driven largely by an increase in falls to a lower level to 647 in 2014 from 595 in 2013. 
• Fatal work injuries involving workers 55 years of age and over rose 9 percent to 1,621 in 2014 up from 1,490 in 2013. The preliminary 2014 count for workers 55 and over is the highest total ever reported. 
• After a sharp decline in 2013, fatal work injuries among self-employed workers increased 10 percent in 2014 from 950 in 2013 to 1,047 in 2014. 
• Women incurred 13 percent more fatal work injuries in 2014 than in 2013. Even with this increase, women accounted for only 8 percent of all fatal occupational injuries in 2014. 
• Fatal work injuries among Hispanic or Latino workers were lower in 2014, while fatal injuries among non-Hispanic white, black or African-American, and Asian workers were all higher. 
• In 2014, 797 decedents were identified as contracted workers, 6 percent higher than the 749 fatally-injured contracted workers reported in 2013. Workers who were contracted at the time of their fatal injury accounted for 17 percent of all fatal work injury cases in 2014. 

So, we know that workplace fatalities are on the rise? What does this mean for your business? It means that now is the time for you to get your workplace-safety house in order. You are (god forbid) one fatality, serious injury, employee complaint, or planned investigation away from an visit from your friendly neighborhood OSHA investigator. 

Do you want to know what your safety programs look like before OSHA shows up at your door? Do you want the comfort of knowing that your OSHA logs and safety training material are in order, and that your safety low-hanging fruit (guarding, lock-out/tag-out, fall protection, PPE, etc.) is handled? 

If so, consider the current time (when OSHA is not in your facility) as borrowed time. Use this borrow time wisely to audit all of your safety practices. It could mean a difference of tens, or even hundreds, of thousands of dollars in fines. Time and money well spent, if you ask me.

OSHA chimes in on transgender bathrooms

OSHA is no stranger to regulating workplace bathrooms. Now, Employment Law 360 [sub. req.] reports that OSHA and the National Center for Transgender Equality “have entered into a partnership to develop and distribute information to ensure transgender employees have safe and adequate access to workplace restrooms.” According to NCTE Executive Director Mara Keisling, “Transgender workers can be prevented from using common workplace restrooms, which is a threat to their physical health and a violation of federal law.” Assistant Secretary of Labor for Occupational Safety and Health Dr. David Michaels adds, “Through this alliance, we will jointly work with the NCTE to develop products and guidance materials to improve workplace safety and health for all workers.”

This is an interesting issue, and, especially for employees and employers for whom this issue causes some degree of discomfort, can present a real problem. Yet, this is a problem with a simple solution—establish a unisex bathroom. Or, you can permit transgender employees to use the bathroom of the gender with which they identify. Either way, this is an issue you should be discussing with your employees and building in your EEO / anti-harassment training. This issue is not going away (see Bruce Jenner), and the sooner you address it in your workplace, the less risk you are taking.

[Image courtesy of Robin Shea’s Employment & Labor Insider]