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“What Should You Do When OSHA Shows Up At Your Door” #OSHA #Inspection

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1/27/2017 by Krista Sterken  | Foley & Lardner LLP

You arrive at work bright and early, only to find that someone beat you there — OSHA is waiting to perform an inspection. Now what? Many employers think they have little say in what happens next. Actually, employers have many choices to make, starting as soon as OSHA arrives.

The first thing step is simply bringing the compliance officer to a conference room or other appropriate location. You should select a location that is private and located close to the entrance, so you do not have to walk the compliance officer through any more of your facility than necessary. If the compliance officer happens to see something that may be a violation, this could provide the basis for a citation and/or expansion of the inspection.

Next, it is time to collect some information — you need to understand why OSHA is there. There are three main types of inspections: complaint inspections (conducted in response to a safety complaint), report inspections (conducted in response to a report of an employee death, injury, or illness), and program inspections (conducted under one of OSHA’s emphasis programs, which focus on particular industries or hazards). In some cases, a previous citation might provide the basis for a follow-up inspection.

You also need to know what OSHA intends to do. The inspection should be tailored to the reason for the visit. For example, a complaint inspection should be limited to areas related to the complaint. Program inspections are dictated by the focus of the program — you can obtain more information from OSHA’s website. All inspections should follow OSHA’s Field Operations Manual.

Finally, you must decide whether to agree to OSHA’s inspection plan. If OSHA identified a legitimate basis for the inspection and an appropriate inspection plan, then you might decide to allow the inspection to begin. However, if you have concerns, you have the right to refuse entry and require OSHA to return with a warrant (unless there is an imminent danger, in which case OSHA must be permitted immediate entry). If you require a warrant, OSHA will have to persuade a judge that its intended inspection is appropriate.

Employers are often nervous about requiring a warrant. However, you have the right to do so. OSHA understands this, and is not permitted to retaliate against you in any way. Requiring a warrant can be an effective way to impose fair parameters for the inspection.

Once the inspection has started, you are only at the very beginning of the process. Because there will be countless other important decisions, involve counsel early (preferably, as soon as OSHA arrives). Every company should also give some advance thought to its “OSHA plan,” identifying specifically how a request for inspection will be handled long before a compliance officer shows up on the company’s doorstep.

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“Is Predictive Analysis For Safety Just the Next Big Thing?”

Another thought provoking #safety post from my good friend Phil La Duke

Phil La Duke's Blog

By Phil La Duke

I’ve taken a fair amount of flack about being behind on the latest and greatest in Safety theory. I’m not worried about getting a little flack from pompous, over-blown, theoreticians who pat me on the head and patronize me for being the poor stupid author of an antiquated article filled with atavistic thinking. That’s fine, but keep it respectful or I will poor more vitriol and bile then you thought possible.

For starters I have been a proponent, advocate, and user of predictive indicators since the late 1990s. But I have to tell you that I think the theoreticians are jumping the gun in saying that we can predict fatalities, or even injuries, at least not without significant education in statistics and data analysis.

Predicting fatalities is a bit like predicting the weather; that is, difficult. The difficulty lies in the many variables that can influence…

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“Five Workplace New Year’s Resolutions for 2017”

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1/24/2017 by Matt Milner  | Snell & Wilmer

With the New Year comes the annual tradition of making New Year’s Resolutions—along with the annual tradition of breaking those resolutions by the second week of January. Even if last year’s Christmas tree survived longer than your new diet, there is still plenty of time to make workplace resolutions that you can actually keep. Here are five valuable projects to consider tackling in 2017.

Handbook Revisions

Treat your employee handbook like the chicken in your freezer. After 12 months, it is no longer safe to use. Revising employee handbooks calls for a delicate balance. Issue a new handbook too often, and you risk creating confusion and apathy about your policies. Revise it too rarely, and your policies could be out of compliance with applicable laws. The beginning of the calendar year, however, is a logical time to dust off the handbook and make your annual revisions. First and foremost, new laws and regulations often take effect at or around the beginning of the year. Additionally, implementing revisions to coincide with the start of a new year may seem more organic (and less controversial) to employees than an abrupt and unexplained decision to revise the handbook at a seemingly random juncture.

Even handbooks that were updated in 2016 may not reflect critical new developments in the law. For instance, OSHA issued new guidance on drug testing and workplace injury policies, the SEC put new emphasis on whistleblower protections that may make confidentiality provisions in handbooks out of date and numerous states and municipalities (including Arizona) have recently adopted mandatory paid sick-leave policies going into effect in 2017. These are just a handful of new developments that may justify the investment in a handbook review. Even if an employer does not revise its handbook, employers may want to take stock of new forms and posters that need to be updated for 2017. For example, by January 22, 2017, employers must use a new Form I-9 for verifying the identity and employment authorization of employees hired in the United States.

Job Description Audit

Written job descriptions are one of the most valuable tools in an employer’s tool belt. They are often “Exhibit A” in a variety of common employment issues: disability accommodations, performance evaluations and counseling, and exemption status under the FLSA. While a well-crafted job description can be powerful evidence, a sloppy or out-of-date job description can be just as harmful. Undertaking an audit of your written job descriptions allows an employer to confirm that its job descriptions are accurate, up to date and sufficiently detailed. Interviewing employees in each position (and their supervisors) is the best way to ensure accuracy. Additionally, for any job descriptions that list physical requirements (such as lifting requirements), investigate whether they reflect current demands of the job. These requirements take on particular importance in the context of reasonable accommodations for employees with disabilities. Finally, reviewing job descriptions is a good excuse to reflect on whether your exempt positions meet the applicable duties test under the FLSA. The duties test is based on the actual duties—not just the job description—but a well-crafted job description is an excellent starting point.

Trade Secrets/Confidential Information Agreements

In 2016, President Obama signed the Defend Trade Secrets Act (“DTSA”), which created new pathways for the protection of trade secrets in federal court. Most notably, the DTSA created a new enforcement mechanism permitting ex parte seizure of stolen trade secrets in certain limited circumstances. To be eligible for civil remedies under the DTSA, however, employers must include specific language in their trade secrets agreements notifying employees of the whistleblower protections embedded in the DTSA. Employers that have not yet revised their confidential information agreements since this major development should consider doing so this year. Additionally, consider taking a second look at how your agreement defines trade secrets and confidential information. The definitions should be narrowly tailored to focus on information that is truly confidential.

Updated agreements are also the perfect excuse to train employees on the use and protection of confidential and trade secret information. Do not assume that employees will understand what is and is not considered confidential. One of most common defenses in misappropriation claims is the argument that a company waived its right to enforce a confidential information agreement by failing to take reasonable steps to safeguard the information. Regular, well-documented training explaining the kinds of information the company considers confidential and what steps employees are expected to take to protect that information can be the difference between winning and losing these cases. At a minimum, better training reduces the risk of inadvertent disclosure of confidential or trade secret information.

Data Security

After the 2016 election, the dangers of cyber attacks became more apparent than ever. But data breaches are not limited to the realm of politics. According to a 2016 study funded by IBM, the average cost of a data breach is now $4 million per incident, with an average cost of $158 per lost record. In more regulated industries like healthcare and education, the cost per record can be more than twice as high.

There are steps that employers can take to reduce the risk of breach. The vast majority of successful data breaches begin with a “phishing” attack, which allows intruders to exploit the most vulnerable part of any data security system: human error. Phishing attacks often take the form of emails that attempt to acquire sensitive user data (such as usernames or passwords). The most effective phishing attacks appear to be from legitimate sources. However, sophisticated IT departments and outside vendors are responding by developing phishing simulations to test users on their susceptibility to real phishing attacks. Coupling these simulations with education on how to recognize suspicious emails is the first line of defense against these attacks.

Additionally, the continued expansion of the use of mobile devices in the workplace creates another point of vulnerability. In particular, the use of personal mobile devices to access work email and other sensitive data must be carefully controlled (if it is permitted at all). If policies on the use of mobile devices and remote access have not been recently reviewed, employers are better off reviewing them today to avoid becoming a headline tomorrow.

Workplace Equality

Issues of gender identity and expression have risen from relative obscurity to prominence in a matter of years. Because of the efforts of the Equal Employment Opportunity Commission to expand the scope of its enforcement efforts to include gender identity discrimination within its definition of sex discrimination and public advocacy from groups like the Human Rights Campaign Foundation, mainstream corporate America is rapidly adopting policies and practices to create a more inclusive workplace for transgender or non-binary employees.

According to the Human Rights Campaign Foundation’s 2017 Corporate Equality Index, 82 percent of Fortune 500 companies have gender identity protections expressly included in their non-discrimination policies. Fifty-three percent of the Fortune 500 offer transgender-inclusive health care coverage—over six times as many businesses as five years ago. In short, the majority of the country’s largest employers have made meaningful efforts to expand protections and benefits for transgender and other LGBT employees.

The framework published in the Corporate Equality Index is a helpful guide for employers seeking to modernize their workplace equality policies.

Conclusion

With a new administration entering the White House, 2017 is certain to be a year of change. Consider starting off the year on the right foot by taking a proactive approach to adopting best practices and catching up with new requirements that have already taken effect before tackling the many changes that will unfold in the coming year.

Source: Snell & Wilmer & JD Supra 

“BLS: On-The-Job Deaths At Highest Level Since 2008″​

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A total of 4,836 deaths due to workplace injuries occurred in 2015 – a 0.3 percent increase over 2014 and the most since 5,214 workers died in 2008, according to data released Dec. 16t, 2016 by the Bureau of Labor Statistics.

Other highlights from the 2015 Census of Fatal Occupational Injuries:

  • The 903 deaths among Hispanic or Latino workers and 495 deaths among African-American workers were the most since 2007 and 2008, respectively.
  • 650 deaths occurred among workers age 65 and older – the second-highest total among this demographic since the Census of Fatal Occupational Injuries began in 1992.
  • Roadway incident fatalities climbed 9 percent to 1,264, accounting for 26 percent of all fatal work-related injuries in 2015.
  • The private construction industry recorded 937 deaths, the highest total since 975 in 2008.
  • Heavy and tractor-trailer truck drivers experienced 745 fatal injuries, the most of any occupation.
  • Fatal injuries among private oil and gas extraction workers were 38 percent lower in 2015 than 2014.
  • The states with the highest number of worker deaths were Texas with 527, followed by California with 388, Florida with 272 and New York with 236.

Although the overall rate of fatal workplace injuries fell to 3.38 per 100,000 in 2015 from 3.43 per 100,000 in 2014, the rise in the number of fatalities alarmed officials.

“These numbers underscore the urgent need for employers to provide a safe workplace for their employees as the law requires,” Secretary of Labor Thomas Perez said in a press release. “We have a moral responsibility to make sure that workers who showed up to work today are still alive to punch the clock tomorrow.”

Meanwhile, AFL-CIO Director of Safety and Health Peg Seminario sounded a warning for the future. “The bottom line is that working people in this country need more safety and health protection – not less,” Seminario said in a statement. “The new administration’s actions on worker safety will be an important measure of whether they are keeping their campaign promises to improve the lives of workers.”

My take on this: If only companies and others would look at their own safety program or investigate how a proactive, hands on,”on the floor”, employee mentoring, workplace safety professional (Like I am and have done) can not only build a great safety culture, but also save them 100K to 500K or more per year in cost savings from WC to PPE and Company Insurance coverage. Then, these overall negative numbers and exposure would be much lower. 

We’ll just have to see if the regulations cutback does happen and to what degree and adapt if necessary. There’s always a way to get the job done and improve safety at any workplace. – Jack Benton, CDS

“How You Could Test Positive For Drugs When You’re Not”

An estimated 45 to 50 million employees are drug tested each year in the United States. Are they accurate every time, though? Turns out, it can be wrong on more occasions than one might expect.

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“Safety Topic Information For a Better Safety Committee at Your Workplace”

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“The True Cost Of Work Related Injuries – Accidents Cost More Than People Realize!”

The True Cost Of Work Related Injuries – An infographic by the team at SafetyVideos.com

“The Complexities Of Medical Marijuana In The Workplace” #Safety #RX

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With the growing list of states legalizing marijuana, are workplace drug policies up in smoke? As the new year begins, Arkansas, Florida and North Dakota join the growing list of states that have legalized medical marijuana. Currently, 28 states* and Washington, D.C., have legalized marijuana use for certain medicinal purposes, and eight states** and the District of Columbia have legalized marijuana for recreational purposes to some extent. The rules and regulations implementing these changes won’t be finalized and put into effect immediately – for instance, the Florida Department of Health has until July 3, 2017 to promulgate regulations for licensing and distribution and until October 3, 2017 to begin issuing medical marijuana identification cards. Even so, it’s best to analyze the impact of the changing marijuana landscape now and prepare for the future.

The 2016 Election and Marijuana Policy

To be clear, marijuana remains illegal under federal law. As recently as August 2016, the U.S. Drug Enforcement Administration restated that marijuana has no acceptable recreational or medicinal purpose, and should remain a Schedule I substance on the Controlled Substances Act. For perspective, heroin and ecstasy are also classified as Schedule I substances.

President-elect Donald J. Trump did not make marijuana policy a priority during his election campaign, and it’s uncertain how his administration will address this issue. On many other issues, Trump indicates a willingness to defer to states. But, certain of President-elect Trump’s picks, including Senator Jeff Sessions for Attorney General and Rep. Tom Price for Secretary of Department of Health and Human Services, suggest the new administration will be less tolerant of marijuana use. As Attorney General, Senator Sessions could renounce the Cole and Ogden Memos issued under the Obama administration, which, in part, state that the Department of Justice will not interfere with businesses and individuals operating legally under state cannabis laws, as long as organized crime and sales to minors are not implicated. Given Sessions’ comments as a U.S. Attorney in Alabama in the 1980s that he thought the KKK “were OK until I found out they smoked pot,” his criticism of FBI Director James Comey and Attorneys General Eric Holder and Loretta Lynch for not vigorously enforcing the federal prohibition, and his floor speech last year stating that marijuana “is already causing a disturbance in the states that have made it legal,” a change in federal enforcement may be in store.

Workplace Safety Remains a Priority

Employers continue to be required to provide employees with a safe workplace and should not compromise safety due to an employee’s use of any legal prescription medication, including medical marijuana. Under OSHA regulations, employers can continue to have drug-free workplace policies, and should prohibit the use of or being under the influence of controlled substances while at work. An article in the Journal of Occupational and Environmental Medicine from May 2015 noted that there is a “likely statistical association between illicit drug use (including marijuana) and workplace accidents.” Additionally, the National Institute on Drug Abuse reports that marijuana’s effects on attention, memory, and learning can last for days, or even weeks, after use. Companies with employees who work in the public sector, such as in transportation, or employees who work in safety-sensitive positions, or operate heavy machinery, should be especially cautious of safety concerns.

Can an employer continue to enforce a zero-tolerance drug policy with regards to pre-employment screening and random drug testing?

Particularly in the three states where medical marijuana is newly legal (Florida, Arkansas, and North Dakota), employers are left wondering what to do about pre-employment screening and random drug testing.

Employers in states that explicitly say employers have no duty to accommodate medical marijuana users can probably rely on such language when screening or discharging applicants or employees for marijuana-positive drug tests results. In Florida, for example, Amendment 2 provides that the law shall not “require any accommodation of any on-site medical use of marijuana” in any place of employment. This presumably means that in Florida, an employer may prohibit an employee from using and/or being under the influence of medical marijuana at the workplace. Similarly, in 2015, in Coats v. Dish Network, LLC, the Supreme Court of Colorado affirmed the termination of employment of an employee who tested positive for marijuana despite having used the drug off-duty for a medicinal purpose, because such use violated federal law and the employer’s drug policy.

In some states, the medical marijuana laws expressly prohibit employment discrimination against medical marijuana users. There may be a potential risk of a claim (such as for disability discrimination under a state equivalent of the federal ADA) in these states by individuals who use marijuana for a medical purpose and are subjected to adverse employment actions. Where state law requires employers to make reasonable accommodations for medical marijuana users, or makes it unlawful for an employer to take an adverse action against an applicant or employee based on medical marijuana use, employers there must be particularly cautious and may need to modify screening and testing policies in order to remain compliant with state law.

What about post-accident testing?

How do employers reconcile automatic drug-testing required by workers’ compensation laws with the new state laws legalizing medical marijuana? Can an employer still require employees to undergo post-accident testing?

Generally, federal law permits employers to test for drugs during accident investigations. In 2016, in a final rule and subsequent clarifying Memorandum, OSHA stated it does not prohibit employers from drug testing employees who report work-related injuries and illnesses as long as the employer has an objectively reasonable basis for conducting the testing, i.e., that the employer can show a reasonable basis for believing that drug use could have contributed to the reported injury or illness. OSHA prohibits the use of drug testing by employers as a form of discipline against employees who report workplace related injuries or illnesses.

Conclusion

The trend towards legalizing marijuana, at least for medical purposes, has continued at the state level. It remains to be seen how the courts and federal agencies will interpret and enforce the laws in 2017. The bottom line is that employers who have not yet determined how they will deal with workplace issues relating to marijuana should do soon.

 

* Medical: Alaska, Arizona, Arkansas, California, Colorado, Connecticut, Delaware, Florida, Hawaii, Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, Montana, Nevada, New Hampshire, New Jersey, New Mexico, New York, North Dakota, Ohio, Oregon, Pennsylvania, Rhode Island, Vermont, and Washington.

** Recreational: California, Washington, Oregon, Alaska, Colorado, Massachusetts, Nevada, and Maine

Source: JD Supra

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