Testimonials

“I Hear You Knocking . . . But You Can’t Come In!”

Check out this months article from Employment Law Monthly, written by Melanie D. Lipomanis, an Associate on the Employment Team at Porzio, Bromberg & Newman, P.C.

I Hear You Knocking . . . But You Can’t Come In!

The time to plan and implement procedures for handling a worksite inspection is definitely not when the Occupational Safety and Health inspector, known as a compliance safety and health officer (“CSHO”), is knocking on the door. Frequently, employers permit CSHOs to expand their inspection to areas in the workplace that are not specifically related to the injury or illness under investigation. Since the inspectors can cite any violations they see in “plain view” regardless of the purpose of the inspection, permitting them unfettered access to the entire worksite can lead to additional citations and penalties.

In United States v. Mar-Jac Poultry, Inc., the U.S. Court of Appeals for the Eleventh Circuit held that OSHA could not expand the scope of a narrow injury-based inspection to a facility-wide general inspection based on the employer’s OSHA 300 injury and illness logs.

In her article she lays out the Facts, Impact of Mar-Jac, and Employer Takeaway from this case.

Facts: Mar-Jac operates a poultry plant in Georgia. In 2016, an employee was hospitalized after being burned by an electrical arc flash. The employer reported the incident as required under OSHA regulations. OSHA’s initial inspection uncovered the potential for other electrical hazards in the poultry plant. OSHA sought to expand the scope of the inspection to cover the entire facility and search for additional hazards in the plant that had no relation to the electrical accident whatsoever, including ergonomics, biological hazards, and slips/falls.

The employer consented to an inspection of the specific worksite and tools involved in the electrical accident, but refused to allow inspection of any additional areas or hazards. OSHA applied for and was granted a warrant to inspect the entire facility. Mar-Jac filed an emergency motion to quash the warrant.

Procedurally, in a warrant application, OSHA must establish probable cause by providing reasonable suspicion that a violation exists. OSHA argued that Mar-Jac’s OSHA 300 injuries and illnesses logs created reasonable suspicion of hazards which suggested the existence of violations. The Eleventh Circuit rejected this argument, holding that a recorded injury or illness does not by itself demonstrate that it resulted from an OSHA violation. The Court distinguished hazards from violations, and explained that the existence of a hazard does not necessarily establish the existence of a violation. OSHA must show a violation to demonstrate reasonable suspicion in a warrant application.

Impact of Mar-Jac: Mar-Jac reinforces that there are limits on OSHA’s inspection authority. OSHA cannot expand its inspection of a facility based solely on the existence of an injury or hazard. Rather, OSHA must proffer additional evidence to support its reasonable suspicion of a violation. Although Mar-Jac is an Eleventh Circuit decision and not binding precedent in other jurisdictions, it does offer a valuable lesson for employers to reasonably limit their consent for inspection to the specific area or tools involved in the reported injury or illness.

Employer Takeaway: Employers are entitled to Fourth Amendment protection against unreasonable searches and seizures of their workplaces, including inspections by OSHA. Accordingly, a CSHO must obtain either the employer’s consent or an inspection warrant prior to any inspection of the employer’s premises. Frequently, the CSHO will arrive at the worksite unannounced, and unarmed with a warrant. Employers do not want employees to make an all too common mistake of throwing the company doors wide-open when they absolutely have no obligation to do so. The initial contact is the first opportunity the employer has to negotiate with the CSHO to limit the scope of the inspection and control how the inspection process will be carried out. This is where the employer’s advanced planning really will pay off.

Section 8(a) of the OSH Act provides: “OSHA may inspect at reasonable times any workplace during regular working hours and at other reasonable times within such reasonable limits and in a reasonable manner.” During the initial consultation, the employer should try to come to terms with the CSHO regarding the reasonableness of the scope and limitations of the inspection, i.e., define the equipment, and/or area of the worksite that is to be inspected by the CSHO. Once that is established, the employer should confine the CSHO’s access and travel routes to only the areas within the scope of the inspection. The CSHO’s physical access to the premises should be with a management escort only, including the company compliance officer during any walk around and sample collection activities.

The CSHO has the right to interview employees as part of any inspection, however, the employer is entitled, and should insist, to be present for the interviews of any management employees.

Click here for the complete article.

 

 

“Electrical arc formed…. and electrocuted him”

Man electrocuted in accident in Fermont

CNESST, the provincial workplace, health and safety commission, has opened an investigation.

A 62-year-old man was electrocuted Saturday morning while trying to remove a backhoe that got stuck in some electrical wires in Fermont, a town on the North Shore near the border with Labrador.

The backhoe slid down a slope on Highway 389, coming to a stop near the wires, according to the Sûreté du Québec.

The man was in the process of retrieving the backhoe when an electrical arc formed from the wires and electrocuted him.

He collapsed in the snow and was pronounced dead after being transported to hospital.

Employees from Hydro-Québec and Transports Québec arrived to secure the area.

Click here for the article from the Montreal Gazette

 

NFPA reports “substantial share” of contractor deaths involving electrical incidents in the construction industry, during recent 5 year period

NFPA reports “substantial share” of contractor deaths involving electrical incidents in the construction industry, during recent 5 year period

The construction industry experienced a “substantial share” of contractor deaths involving electrical incidents during a recent five-year period, according to a report from the National Fire Protection Association.

NFPA senior research analyst Richard Campbell examined Census of Fatal Occupational Injuries data for contract worker deaths from 2012 to 2016. “Contracted worker” was defined as “employed by one firm but working at the behest of another firm that exercises overall responsibility for the operations at the site” where the fatality occurred.

Data showed that 325 electrical fatalities involved contract workers during the studied time period. In 2016, 63 cases occurred, ending a three-year rise that peaked at 76 in 2015.

Campbell notes in the report that time and budgetary pressures in the industry may cause workers to try to complete jobs faster or work longer hours – “both of which can compromise safety.”

To help reduce the number of electrical deaths and improve safety, NFPA recommends that:

  • Contractors establish reasonable expectations for when work will get done and not promise unrealistic deliverables in hopes of landing a contract.
  • Owners select contractors based on reliability and safety considerations. Contractors should do the same when selecting subcontractors.
  • Top management communicate to supervisors, whose responsibilities include both keeping production on track and ensuring work is done safely, that safety must not be compromised when schedules are threatened.

Exposure to electricity was the fifth-leading cause of work-related death for contract workers during the five-year period.

Slips, trips and falls were the leading causes of death (1,350 fatalities), followed by contact with objects and equipment (951) and transportation incidents (813).

Click here for the entire article from Safety+Health Magazine.

Shock and Burn at Extell project site

A construction worker was electrocuted early yesterday during a work accident at 227 Cherry Street in New York City. The man reportedly sustained second-degree burns about the arms, neck, and head, but was conscious when paramedics arrived. He was later taken to the hospital in stable condition.

The Fire Department is investigating the incident and requested the Department of Buildings perform an inspection to learn more about what happened.

Click here to learn more about the incident.

Construction worker loses his life due to apparent electrical shock

SALT LAKE CITY — A 33-year-old construction worker died from an electrical shock at a job site in Salt Lake City, officials said Tuesday morning.

The man was a sub-contractor doing electrical work for an expansion being built at the state archives located at 346 S. Rio Grande Street, said Salt Lake City police detective Greg Wilking.

It appears the man died Monday afternoon from an electrical shock, but was working alone in the corner of a room that is not easily visible, according to Wilking. Co-workers did not notice him and closed the construction site for the night.

The man’s wife contacted the company when her husband did not come home, but the company had no information.
Co-workers searched the construction site Tuesday morning and found the man’s body.

Click here to read more directly from the KSL article