Employers are entitled to rely on expert or specialty contractors to ensure compliance with OSHA standards—but only when that reliance is reasonable. The Court of Appeals for the D.C. Circuit recently clarified that reliance is not reasonable when the employer—by way of expertise, control, and time—should foresee danger to its employees.
The Occupational Safety and Health Review Commission has a full panel again. Because it now has a “quorum”, or the minimum number of commissioners needed to take official action, the Commission will begin working through the backlog of OSHA cases on its docket. This is good news for stakeholders in the OSHA enforcement scheme. The Commission provides helpful clarity, guidance, and interpretation—even when it rules against the employer—which enables employers to better understand their safety obligations.
An appeals court recently clarified an employer's obligation to monitor respiratory hazards. Employers must evaluate the workplace for respiratory hazards whenever there is the potential for overexposure of employees to contaminants. Significantly, the appeals court applied the Supreme Court’s Kisor v. Wilkie decision, which purports to limit OSHA’s discretion in interpreting its own regulations, to an OSHA regulation for the first time.
OSHA can cite employers for willful violations of the general duty clause—and will do so with little hesitation following fatalities and catastrophes. Safety Managers should actively monitor and critically evaluate obvious and glaring hazards, and consider formalized training on safe work practices related to those hazards.
Reliable mail handing procedures might save you from an untimely notice of contest. Every employer should create dependable mail routing procedures that ensure mail promptly reaches the appropriate decision-maker. Even with a steady track-record of timely-filed contests, you will want evidence that your internal mail procedures are such that employees losing the mail is a one-off unforeseeable error.
OSHA is now using a new Weighting System to gauge enforcement activity that will incentivize Area Offices to conduct more intensive investigations. Before, an Area Office might have been reluctant to undertake intensive, complex inspections because it would not have received enough “credit” within the agency and have been penalized for being ineffective. Now, Area Offices are rewarded for more complex inspections, and employers may well see an uptick in multi-CHSO, multi-day inspections.