Court Limits OSHA’s Ability to Issue Citations Beyond Six Month Statute of Limitations
- Article Information
- Published on Thursday, 19 April 2012 03:14
In a recent case, a federal district Court of Appeal has limited the ability of the Occupational Safety and Health Administration (OSHA) to issue citations beyond the six month statute of limitations. The case involves Volks Constructors, a company that OSHA cited for failing to properly record certain workplace injuries, and for failing to properly maintain its injury log between January 2002 and April 2006. OSHA issued the citations in November 2006, which was, as Volks points out, at least six months after the last unrecorded injury occurred. Federal law specifies that no citation may be issued “after the expiration of six months following the occurrence of any violation.” Volks thus argued that the citations were untimely and should be vacated. On appeal, the court agreed with Volks, holding that the citations were untimely because the injuries giving rise to the alleged recording failures took place more than six months before the issuance of the citation.
Pursuant to the Occupational Safety and Health Act (“OSH Act” or “Act”) every “employer shall make, keep and preserve” records of workplace injuries and illnesses.” Specifically, employers must record information about work-related injuries and illnesses as follows: (1) Employers must prepare an incident report and a separate injury log within 7 calendar days of receiving information that a recordable injury or illness has occurred. An injury or illness must be recorded if it results in any of the following: death, days away from work, restricted work or transfer to another job, medical treatment beyond first aid, or loss of consciousness. The employer must also consider that a case meets the general recording criteria if it involves a significant injury or illness diagnosed by a physician or other licensed health care professional, even if it does not result in death, days away from work, restricted work or job transfer, medical treatment beyond first aid, or loss of consciousness; (2) Employers must prepare a year-end summary report of all recordable injuries during the calendar year; (3) The year-end summary must be certified by a “company executive”; (4) The employer must retain all of these documents for five years from the end of the calendar year that the records cover.
When an occupational injury or illness involves an employee missing one or more days away from work, the employer must record the injury or illness on the OSHA 300 Log with a check mark in the space for cases involving days away and an entry of the number of calendar days away from work in the number of days column. If the employee is out for an extended period of time, the employer must enter an estimate of the days that the employee will be away, and update the day count when the actual number of days is known. Read More.
DIR Seeks the Public’s Input on Workers’ Compensation System
- Article Information
- Published on Tuesday, 10 April 2012 05:32
The Department of Industrial Relations (DIR) and the Division of Workers’ Compensation (DWC) have scheduled open forums across California to begin discussions on the workers’ compensation system and to gather information from stakeholders and members of the public on suggestions for improvements. According to DIR Director Christine Baker, “We want to gather input on areas of improvement for the workers’ compensation system in our effort to ensure a balanced approach for both injured workers and employers…Our effort is to identify efficiencies and improvements that will ensure adequate and timely benefits to injured workers while ensuring that the costs of the system are sustainable. Those who are familiar with the workings of the system are more likely to be able to point out areas of focus for our efforts.” DWC Administrative Director, Rosa Moran, commented that, “Improvements are needed to get injured workers back to work and to remove the imbalance of costs and benefits currently in the system.” Topics of discussion will include:
Provision of appropriate medical treatment without unnecessary delay, the medical provider network (MPN), utilization review (UR) or other issues;
Enabling injured workers to return to work as quickly as medically feasible;
Adequate compensation for permanent disabilities;
Reducing the burden of liens on the system;
Identification of appropriate fee schedules;
Reducing unnecessary litigation costs;
Assessing appropriate use of opiates and other care;
Any other improvements needed.
The forums will be held:
Tuesday, April 10, 2012—West Sacramento, CA 95605 (click here to register)
Monday, April 16, 2012—Los Angeles, CA 90013 (click here to register)
Wednesday, April 18, 2012—Fresno, CA 93721 (click here to register)
Tuesday, April 24, 2012—San Bernardino, CA 92401 (click here to register)
Wednesday, April 25, 2012—La Mesa, CA 91942 (click here to register)
Monday April 30, 2012—Oakland, CA 94612 (click here to register)
Seating is limited at many of the locations and registration is required. Read More.
Employer Must Pay $300,000 For Terminating an Employee Who Reported a Work-Related Injury
- Article Information
- Published on Thursday, 29 December 2011 20:53
The U.S. Department of Labor's Occupational Safety and Health Administration (OSHA) is reporting that Omaha, Nebraska based Union Pacific Railroad Company must immediately reinstate an employee in Idaho who the company allegedly terminated after the employee reporting a work-related injury. The company must also pay the employee more than $300,000 in back wages, compensatory damages, attorney's fees and punitive damages. The employee filed a whistleblower complaint with OSHA, alleging suspension without pay and then termination 23 days after allegedly notifying the company of a work-related injury. OSHA's investigation found reasonable cause to believe that the disciplinary charges and termination were not based on the employee violating a work rule but were instead due to the employee reporting the injury to the railroad, which is a violation of the Federal Railroad Safety Act's whistleblower protection provisions. According to Assistant Secretary of Labor for OSHA, Dr. David Michaels, "This case sends a clear message that OSHA will not tolerate retaliation against workers for reporting a work-related injury. An unreported injury is an uninvestigated injury. Nothing is learned that can help prevent the next injury…The safety of all workers is endangered when employers intimidate injured workers so that they do not report injuries." Read More.
Incidence Rates for Nonfatal Workplace Injuries and Illnesses Continue to Decline
- Article Information
- Published on Monday, 24 October 2011 16:51
According to a U.S. Bureau of Labor Statistics (BLS) report, although nearly 3.1 million nonfatal workplace injuries and illnesses were reported among private industry employers in 2010, which resulted in an incidence rate of 3.5 cases per 100 equivalent full-time workers, this is down from 3.6 cases in 2009. This continues an eight year decline (beginning in 2002) for the injury and illness incidence rate among private industry employers, when estimates from the Survey of Occupational Injuries and Illnesses (SOII) were first published using the current OSHA requirements for recording occupational injuries and illnesses. Incidence rates for injuries and illnesses combined among private industry establishments declined significantly in 2010 for total recordable cases and for other recordable cases. However, the incidence rates for cases with days away from work; for cases of job transfer and restriction; and for cases of days away from work, job transfer, or restriction together each remained unchanged from 2009. Manufacturing was the sole private industry sector to experience an increase in the incidence rate of injuries and illnesses in 2010--rising to 4.4 cases per 100 full-time workers from 4.3 cases in 2009. The incidence rate of injuries only among private industry workers remained unchanged between 2009 and 2010 at 3.4 cases per 100 full-time workers. Read More.
California Supreme Court Denies Seabright’s Petition for Rehearing
- Article Information
- Published on Friday, 21 October 2011 20:24
Seabright Insurance Company filed a petition for rehearing on September 6, 2011, in the case of Seabright
Insurance Company v. US Airways, Inc. 52 Cal. 4th 590, which the California Supreme Court denied on October 19, 2011. The case involved an independent contractor’s employee who sustained a work related injury while working on the hirer’s facilities, and then filed a workers’ compensation claim under the independent contractor’s policy. The workers’ compensation provider, Seabright Insurance Company (who accepted the claim), sought indemnification from the hirer of the independent contractor, US Airways, on the theory that the company breached a non-delegable duty under Cal-OSHA to ensure that a conveyor (which allegedly caused the employee’s injury) had the requisite safety guards, and was thus liable for the employee’s injuries even though the employee worked for the independent contractor. However, the California Supreme Court disagreed, emphasizing that there is a strong policy “in favor of delegation of responsibility and assignment of liability to independent contractors…an independent contractor‘s hirer implicitly delegates to that contractor its tort law duty, if any, to provide the employees of that contractor a safe workplace…we reject the premise that the tort law duty, if any, that a hirer owes under Cal-OSHA and its regulations to the employees of an independent contractor is nondelegable.” Read More.
More Articles...
