OSHA enhanced enforcement prompts concern
Feb 1, 2004 12:00 PM
THIS may be the most significant thing that happened in 2003,” said Marcel Debruge of Burr & Forman LLP. The attorney directed his concern toward the Occupational Safety and Health Administration (OSHA) and what he defined as its enhanced enforcement policy.
On March 11, 2003, the Secretary of Labor announced the policy that targets employers who defy worker safety and regulations. “Anybody out there that has had a willful citation, repeat citation, or serious citation is vulnerable to follow-up program inspections,” he said. “You can expect they will be back on a regular basis just because you have had that citation in the past.”
He pointed out that follow-up inspections will be company-wide, not just the facility where the problem occurred.
On another topic, ergonomics, he said that although the Bush administration has rescinded the ergonomics standard introduced by the Clinton administration, the issue is not dead. OSHA continues to inspect and cite companies for ergonomics violations, using rules that fall under the general duty clause that calls for a safe workplace.
Debruge said his firm has had four clients who received OSHA inspections in the last 12 months. Inspectors looked for neck, back, and wrist injuries to see if there were ergonomics problems.
Inspectors also scrutinize a company's written ergonomics program, particularly if that program defines ergonomic injuries. Those definitions can then be used to cite injuries. Debruge advised carriers to be careful in writing ergonomic programs so they don't provide a case for liability.
Other issues he discussed included:
The Surface Transportation Assistance Act that includes a provision that provides protection for whistle blowers. The act also protects people who refuse to drive a vehicle that they believe to be unsafe, who report violations of vehicle safety and significant hazards problems.
New reactive chemical standard being proposed by the American Society of Safety Engineers. OSHA is in process of drafting new standards. “That needs to be on your radar screen,” he said.
The Americans with Disabilities Act that requires employers to make adjustments in the workplace for the disabled. The definition of who is disabled is an issue that continues to be debated in the courts.
Programs in place to screen job applicants' health problems that can be discerned by tests, such as a nerve scan for carpal tunnel syndrome.
New privacy rules for maintaining employee health records.
OSHA penalties on the increase. “Twenty percent of the cases that I deal with are over $100,000,” he said.
Union organizing is growing. He advised carriers to train supervisors about union organizing tactics and the reasons why a union-free shop is better. “Don't criticize the union,” he said. “Argue the benefits of your company.”
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