OSHA ANNOUNCES FINAL RULE ON SILICA DUST

John M. Williams (williams@rwktlaw.com)

The Occupational Safety and Health Administration has announced its final rule on respirable silica aimed at protecting American workers from harmful exposure to silica. Crystalline silica has been linked to lung cancer, chronic obstructive pulmonary disease and other serious health issues.

The final rule is a two-part regulation, one aimed at construction and the other at general industry and maritime. The rule calls for implementation of new engineering controls and a reduction in permissible exposure limits with staggered compliance dates. For more details, see OSHA’s website.

Employers should become familiar with the new requirements and prepare plans to meet the applicable compliance deadlines.

©RAJKOVICH, WILLIAMS, KILPATRICK & TRUE, PLLC 2016

 

OSHA FINES PILGRIM’S PRIDE AFTER ACCIDENT IN ALABAMA

Noelle Holladay True (true@rwktlaw.com)

The U.S. Department of Labor’s Occupational Safety and Health Administration (“OSHA”) has issued citations to Pilgrim’s Pride Corp. following the agency’s investigation of a workplace accident that occurred at an Alabama poultry plant in September 2015.  The accident occurred when  a machine operator was attempting to reassemble a  chicken-part separating machine when it started unexpectedly, amputating part of his finger.

OSHA cited Pilgrim’s Pride with a “repeat violation”  for “failing to develop, document and train workers on the specific procedures to prevent machinery from starting up” while maintenance and service work is being performed, and issued a $70,000 penalty for this violation.  Pilgrim’s Pride was also issued a “serious violation” for a damaged 115 volt cable on the machine, and issued a $7,000 penalty.

Pilgrim’s Pride can request a conference with OSHA’s area director in Birmingham to contest these findings.

OSHA CITES HOME BUILDERS ALMOST $145,000

John M. Williams (williams@rwktlaw.com)

Under a Regional Emphasis Program (REP) issued by the Occupational Health and Safety Administration (OSHA) Region IV, OSHA inspectors are emphasizing fall protection in the construction industry. In a recent example of the REP’s effects, OSHA cited four contractors in a Florida subdivision for failing to provide adequate fall protection to employees. These Jacksonville contractors were cited for a total of $144,800 in proposed penalties.

OSHA stresses fall protection, recognizing that falls are a leading cause of work-related injury. Fall protection standards for the construction industry may be found here. State sponsored programs will have their own similar standards. 2010 statistics from the Bureau of Labor Statistics showed that 35% of the 751 construction-related fatalities were caused by falls. Employers must be aware of the safety standards and stress full compliance.

©RAJKOVICH, WILLIAMS, KILPATRICK & TRUE, PLLC 2016

MISBEHAVING SUPERVISORS–ARE EMPLOYERS LIABLE FOR THEIR CONDUCT UNDER OSHA?

Melanie Kilpatrick (kilpatrick@rwktlaw.com)

The United States Court of Appeals for the Eleventh Circuit recently issued a decision clarifying when a supervisor’s misconduct is sufficient to establish an employer’s knowledge of the misconduct for purposes of proving a violation of the Occupational Safety and Health Act (“OSHA”).

As part of his case, the Secretary of Labor must show that the employer “knowingly disregarded” OSHA’s requirements.  Ordinarily, if the Secretary can prove that a supervisor had knowledge of a subordinate employee’s violation, that knowledge is imputed to the employer.  However, when the supervisor himself is the one who engaged in the violative conduct, a majority of circuit courts have refused to impute the supervisor’s knowledge of his own misconduct to the employer.  The courts reason that if the Secretary were permitted to establish employer knowledge solely with proof of the supervisor’s misconduct, then the Secretary would not really have to establish knowledge at all.  The mere fact of the violation would satisfy the knowledge element.

In Quinlan v. Secretary of Labor (January 2016), the court was presented with the question of whether a supervisor’s knowledge of a subordinate employee’s violative conduct should be imputed to the employer when the supervisor is simultaneously involved in the same misconduct. In that case, the foreman and a subordinate were working on a concrete block wall and roof platform without fall protection.  The court found that the Secretary had established the foreman’s actual knowledge of the subordinate employee’s misconduct because the foreman was engaged in the misconduct with him.  The court recognized a distinction from a scenario based solely upon the supervisor’s knowledge of his own misconduct and decided to apply the general rule that the supervisor’s knowledge of the subordinate employee’s violation should be imputed to the employer.

Under Quinlan, although employer knowledge cannot be based solely upon proof of the supervisor’s misconduct, a supervisor’s  knowledge of misconduct can be imputed to the employer when the supervisor sees the violation and pitches in to work beside the subordinate.

©RAJKOVICH, WILLIAMS, KILPATRICK & TRUE 2016