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Category Archives: General Duty Clause

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Hospitals’ Heavy Lifting: Understanding OSHA’s New Hospital Worker and Patient Safety Guidance

James S. Frank, a Member in the Health Care and Life Sciences and Labor and Employment practices, and Serra J. Schlanger, an Associate in the Health Care and Life Sciences practice, co-authored an article for the American Health Lawyers Association (AHLA) entitled “Hospitals’ Heavy Lifting:  Understanding OSHA’s New Hospital Worker and Patient Safety Guidance.”

The article, published in AHLA’s Spring 2014 Labor & Employment publication, summarizes OSHA’s new web-based “Worker Safety in Hospitals” guidance, explains how the guidance relates to OSHA’s existing regulatory framework, and details what OSHA considers necessary for an effective Safe Patient Handling Systems as … Continue Reading

OSHA Enforcement of Fall Protection on Rolling Stock — A BioFuels Journal Article

The national OSHA Practice Group at Epstein Becker Green co-authored an article in BioFuels Journal entitled “Railcar Fall Protection: What OSHA Requires from Ethanol Plant Operators.”  Although the article principally addresses OSHA’s enforcement landscape related to work on top of railcars at ethanol plants, the analysis carries over to work on top of any rolling stock (e.g., tanker trucks, railcars, rigs, etc.) in any industry.

Here is an excerpt from the article:

Addressing fall hazards is always among the OSHA’s top enforcement priorities.  Indeed, OSHA’s fall protection standards continue to rank among the most frequently cited year after year.  The

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New California Law Requires Employers to Provide “Cool-Down Recovery Periods”

By Alka N. Ramchandani and Michael D. Thompson

In recent years, Cal-OSHA has taken an aggressive stance against exposing employees to potential heat illness, often citing employers and proposing significant penalties for failing to provide to employees who work in high heat conditions with adequate drinking water, shade, training, and/or cool-down periods.  Furthermore, as noted by the California Supreme Court in Brinker v. Superior Court, monetary remedies for the denial of meal and rest breaks “engendered a wave of wage and hour class action litigation” when added to the California Labor Code more than a decade ago.

The California … Continue Reading

OSHA Launches Ergonomics Campaign in Healthcare Industries

By Eric J. Conn, Head of Epstein Becker & Green’s OSHA Practice Group

OSHA recently announced a campaign to raise awareness about the hazards likely to cause musculoskeletal disorders (MSDs) among health care workers responsible for patient care.  Common MSDs suffered in the patient care industry include sprains, strains, soft tissue and back injuries.  These injuries are due in large part to over exertion related to manual patient handling activities, often involving heavy lifting associated with transferring and repositioning patients and working in awkward positions.

“The best control for MSDs is an effective prevention program,” said MaryAnn Garrahan, OSHA’s Regional

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Employer-Sponsored Wellness Program Held Lawful Under the ADA

By Frank C. Morris, Jr. and Jordan B. Schwartz

An employer’s wellness program—despite certain “penalty” provisions—was recently held not to be discriminatory under the Americans with Disabilities Act (“ADA”) by the U.S. Court of Appeals for the Eleventh Circuit in Seff v. Broward County.  The Eleventh Circuit found the wellness program, sponsored by Broward County, Florida (“County”), was established as a term of the County’s insured group health plan and, as such, fell under the ADA’s bona fide benefit plan “safe harbor” provision.  This ruling is welcome news for employers with or considering wellness programs.

However, if the County’s … Continue Reading

Airlines Should Buckle-up for More OSHA Scrutiny

By Eric J. Conn

In August of 2010, a Delta Air Lines (“Delta”) baggage handler was fatally injured in a workplace accident, when the employee was ejected from a baggage tug vehicle while not wearing a seat belt.  As a result of this incident, Delta was cited by OSHA in February 2011 for alleged violations of regulations under the Occupational Safety and Health Act, including specifically, 1910.132—relating to personal protective equipment.

Corporate-Wide Settlement

To resolve the citations, Delta entered into a settlement agreement with OSHA on April 17, 2012 that required Delta to pay a modest penalty, $8,500, but also … Continue Reading

OSHA’s Battle Against Hotel Operators Continues

By Paul H. Burmeister

The OSHA/Hyatt Hotels saga continued with a recent exchange of letters between OSHA and the hotel chain’s attorney.  In April, OSHA issued a “5(a)(1) letter” to the CEO of Hyatt Hotels, indicating that OSHA believed there were ergonomic risks associated with the daily work activities of the company’s housekeeping staff.  The letter put the hotel chain “on notice” that while OSHA did not believe that a “recognized hazard” existed at the  time of the inspection, such that a General Duty Clause citation should issue, if the same hazard was later identified in a subsequent inspection, OSHA … Continue Reading

With Domestic Violence Increasing, What Should Employers Do?

by Margaret C. Thering and Lauri F. Rasnick

Violence against women has been in the headlines lately – the reauthorization of the Violence Against Women Act is engendering vigorous debate, and as of last month, federal agencies were ordered to implement policies to assist their employees who are victims of domestic violence.  Also last month, the National Institute for Occupational Safety and Health and the Injury Control Research Center at West Virginia University published a paper entitled “Workplace Homicides Among U.S. Women: The Role of Intimate Partner Violence” in the Annals of Epidemiology, which found that from 2003 to … Continue Reading

OSHA to Turn Up the Heat on Heat-Related Illness

By Amanda R. Strainis-Walker and Eric J. Conn

With the dog days of summer around the corner, OSHA just put out a press release reminding employers with outside workplaces about OSHA’s focus on the hazards of working in high heat.  The press release reinvigorates OSHA’s heat-related illness campaign that began leading into last summer, when OSHA produced a great deal of public information about heat-related illness, including a dedicated heat illness information page on OSHA’s website, a YouTube video, public press statements, speeches by senior Department of Labor and OSHA officials, and even a Heat Safety Smartphone App.

The Smartphone … Continue Reading

Workplace Violence Policies and Background Checks Are Essential Components of a Prevention Plan

By Kara M. Maciel

Sadly, workplace violence continues to be a topic that challenges many organizations.  Indeed, as the news reports continue to remind us, employees and non-employees often take out their aggression and violent acts within the workplace.  As the recent attacks at hospitals in Pittsburgh and in Washington, D.C. demonstrate, there remains a high rate of fatal and non-fatal assaults and violent acts committed within the workplace, and, in particular, within the healthcare industry.  One of the struggles that employers face is trying to prevent violent conduct by third-party non-employees who are generally beyond the control of the … Continue Reading

OSHA Launches New Nursing Home National Emphasis Program

By Julia E. Loyd and Eric J. Conn

Last week, the U.S. Department of Labor’s Occupational Safety and Health Administration (“OSHA”) launched a new National Emphasis Program targeting Nursing Homes and Residential Care facilities (“Nursing Home NEP”).  In an accompanying Press Release, OSHA announced that the Nursing Home NEP aims to protect workers from safety and health hazards “common in medical industries.”  Effective upon its announcement and for a three-year period thereafter, the NEP focuses on ergonomic hazards (e.g., strains and sprains from patient  handling), exposure to bloodborne pathogens (e.g., needlestick injuries), workplace violence (e.g., assaults by patients or others), … Continue Reading

Text Free Zone: OSHA’s Distracted Driving Initiative Kicks Into Gear

By Casey M. Cosentino and Eric J. Conn

“Texting while driving” is an epidemic in America, which has prompted forty-two states and the District of Columbia to ban (completely or partially) this conduct for drivers.  Here’s a map of the U.S. states that have enacted some ban on texting while driving.  Studies suggest that texting while driving distracts drivers’ cognitive focus and removes their eyes from the road and hands from the wheel.  It is not surprising, therefore, that distracted driving is attributed with sixteen percent (16%) of all traffic fatalities in 2009.

The consequences of texting while driving are … Continue Reading

OSHA Finally Releases Its Watered-Down Fall 2011 Regulatory Agenda

By Paul H. Burmeister and Eric J. Conn

At the end of January 2012, OSHA finally released its Fall 2011 regulatory agenda, which is intended to be an overview of what OSHA plans to accomplish in the next few months.  The agenda includes updates about the status of several major OSHA rulemaking efforts.  Below is a brief summary of the Reg Agenda.

This Reg Agenda was far less ambitious than each of the previous agendas set forth by the Obama Administration’s OSHA, but it does reveal the agency’s top priorities that will continue to be pressed even during an election … Continue Reading

2011 Rundown of OSHA’s Combustible Dust National Emphasis Program and Rulemaking

By Amanda R. Strainis-Walker and Eric J. Conn

OSHA’s keen interest in enforcement related to combustible dust shows no sign of waning as we close the door on 2011.  OSHA’s Combustible Dust National Emphasis Program (NEP), initiated in 2008, continued in earnest through 2011, and notably, has no expiration date.  The number of violations and the size of civil penalties arising out of the Combustible Dust NEP inspections continue to rise, and OSHA points to that data as support for its active pursuit of a comprehensive Combustible Dust Standard.

Combustible Dust NEP:

OSHA launched the Combustible Dust NEP after … Continue Reading

OSHA Forecast – Top 5 OSHA Developments to Look Out For In 2012

By Eric J. Conn and Amanda R. Strainis-Walker

As the clock winds down on 2011, a truly remarkable year of OSHA enforcement, it is time to think about 2012.  Notwithstanding the fact that 2012 is an election year, and much of OSHA’s rulemaking activities will be shelved until the day after the election, 2012 is likely to be another remarkable year in the OSHA universe, from significant enforcement initiatives to the completion of some major rules.

Below is a list of the 5 most important developments we expect to see out of the agency in the upcoming year:

  1. Nationwide Chemical
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OSHA’s New Laboratory Safety Guidance Paves the Way for Enforcement Actions

By Alexis M. Downs and Eric J. Conn

Employers who operate laboratories are suddenly receiving a high level of attention from federal safety and health regulators.  Following a string of serious laboratory accidents, the U.S. Chemical Safety and Hazard Investigation Board (the “CSB”) posted an informational video on its website detailing hazards at chemical laboratories, based on a study of 120 explosions, fires, and chemical releases at university and other research laboratories (view the CSB’s Lab Safety Video here).  At the same time, federal OSHA just published a 52-page manual entitled “Laboratory Safety Guidance,” outlining “non-mandatory” guidance for lab … Continue Reading

Housekeepers Use OSHA as a Weapon Against Hospitality Employers

By Jay P. Krupin, Kara M. Maciel, and Eric J. Conn

As we reported in our blog post in November of 2010, hotel housekeepers across the nation launched a concerted program of filing complaints with the Occupational Safety and Health Administration (OSHA) alleging a range of ergonomic and chemical exposure injuries sustained on the job. Government regulators and legislators are now taking action in response to these complaints. We have attached a series of articles discussing the nature of the complaints and the government’s response to them.

Read more on the Hospitality Labor and Employment Law Blog.

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Hotel Housekeepers File OSHA Complaints Nationwide

By Jay P. Krupin and Kara M. Maciel

Last week, on November 9, 2010, housekeepers employed by Hyatt Hotels filed complaints with OSHA alleging injuries sustained on the job. The complaints were filed in eight cities across the country, including Chicago, Los Angeles, San Francisco, Long Beach, San Antonio, Honolulu and Indianapolis.  Similar OSHA actions may occur in Boston, NYC, DC, Atlanta, Las Vegas, Miami, and Orlando with higher concentrations of hotel properties. This is the first time that employees of a single private employer have filed multi-city OSHA complaints, and it appears to be a coordinated effort with organized

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