1. Workplace Safety Chapter 15

2. Workers’ Compensation
State law
Benefits for work-related injuries and illnesses.
Benefits might be paid by
Insurance company
Employer
State

3. Work-related injury or illness
Must occur within the scope of employment
Must not be intentional self-inflicted
Employee must not be drugged or intoxicated

4. Workers’ Compensation statutes began being passed in the early 1900s
Before that employers had a number of defenses if an employee was injured
Contributory negligence
Assumption of risk
Fellow-servant rule

5. What does Workers’ Compensation typically cover?
Medical bills
Lost income (2/3 of salary. Not subject to income tax.)
Recovery for loss of use of body parts.
Rehabilitation
Death benefits for dependents

6. Who is covered?
In some states, employers do not have to provide coverage if they have fewer employees than a certain number. (In GA, it is 3.)
Some workers are covered under similar federal laws
Federal Employer’s Liability Act
Longshore & Harbor Workers’ Compensation Act
Merchant Marines Act (Jones Act)

7. Advantages to Workers’ Compensation
Employer is strictly liable
Do not care who is at fault
Less for employee to have to prove. Should be paid faster

8. Disadvantages to Workers’ Compensation
Employees collect less than in a lawsuit
Workers’ Compensation is “the exclusive remedy against the employer.” The employer can not be sued in negligence.
What additional damages could an employee collect if s/he could sue in negligence?
100% lost income (unlimited)
Pain and suffering
Punitive damages

9. Employee cannot sue the employer in negligence, but what about a third party?
Employer/insurance carrier usually have a right of SUBROGATION.

10. What defenses can an employer raise?
Worker is not an employee. S/he is an independent contractor.
Not work related. Not within the scope of employment.
Employee is actually able to work.

11. Georgia State Board of Workers’ Compensation
Information for Georgia Employers

12. See SMB Stage Line, Inc. v. Leach, 204 Ga. App. 229, 418 S. E
See SMB Stage Line, Inc. v. Leach, 204 Ga. App. 229, 418 S.E.2d 791 (1992)
See Collie Concessions, Inc. v. Bruce, 272 Ga. App. 578, 612 S.E.2d 900 (2005)

13. Occupational Safety & Health Act
The OSH Act is the principal federal governing the safety of private sector workplaces.
The Act created 3 new agencies:
OSHA, the Occupational Safety & Health Administration (administers the OSH Act)
OSHRC, the Occupational Safety & Health Review Commission (independent from OSHA; hears appeals from OSHA rulings)
NIOSH, the National Institute of Occupational Safety & Health (provides scientific & technical support to OSHA)

14. Statutory Basis
The Occupational Safety and Health Act requires employers to provide a place of employment free from recognized hazards and to comply with other standards under the act
It also requires employees to comply with health standards and rules applicable to his or her own actions

15. Safety at Work
Prior to the act in 1970 there was no comprehensive requirement for employers to provide safe working conditions
Three common law defenses often allowed employers to escape liability
Contributory negligence
Assumption of risk
Fellow servant rule

16. Act covers any employer that is in a business affecting commerce
Requires employers to comply with standards set by Department of Labor
Compliance requirements
Requires employers to provide workplace free from recognized hazards
General duty clause
Workplace death rate cut in half since act

17. Excluded from Coverage
All Governments
Family business
Self-employed
Rail Roads
Mining
Nuclear
Farms employing 25 people or less

18. Procedure for Enforcement
Occupational Safety and Health Administration (OSHA) administers act
Inspects workplaces without prior notice
Penalties may be assessed
Standards set by National Institute for Occupational Safety and Health
Managers may be held personally liable for offenses

19. Compliance Provisions
Some specific regulations apply to nearly all types of employers
Adequate ventilation, emergency exits, safety nets, guard rails
Proper training for employees
Continual-training requirement
Medical exams for exposure to toxic substances
Driver training, seat-belt usage, vehicle inspection

20. When & why does OSHA inspect?
Imminent danger
A death or 5 or more employees are hospitalized
Legitimate employee complaint
Special program or projects
Random
Re-inspection

21. Does OSHA need a search warrant?

22. Developing and enacting new standards can take some time.
Emergency temporary standards may be set when employees are exposed to grave danger from exposure to substances and the standards are necessary to protect the employees from danger

23. General Duty Clause
Requires employers to provide each employee employment and a place of employment free from recognized hazards that cause or are likely to cause death or serious physical harm
Recognizable hazards may actually be known by the employer or recognized by the industry

24. “Likely to cause serious physical harm or death” has been construed to mean “possible”
Since OSHA has not addressed HIV/AIDS exposure with a specific standard, the general duty clause may apply
OSHA does not hold employers liable for employees’ home offices, but considers cars “virtual worksites”

25. Violation of the General Duty Clause
The elements necessary to prove a violation of the general duty clause are:
1. A workplace hazard was allowed to exist.
2. The hazard was or should have been recognized by the employer.
3. The hazard caused or was likely to cause death or serious physical injury.
4. Feasible means exist to abate the hazard and were not used.

26. OSHA has guidelines, but no rules, on workplace violence
Employers have been held liable for repetitive use injuries although there are no specific standards
Employees may refuse to work in an unsafe work environment without fear of retaliation
OSHA has guidelines, but no rules, on workplace violence
General duty clause may apply

27. Elements of a Violation
To establish violation of a safety standard, OSHA must show all the following:
1. An applicable standard exists.
2. The standard was not complied with.
3. One or more employees were exposed or had access to the hazard.
4. The employer knew or should have known of the hazard.

28. Just the Facts
For a company-sponsored outdoor barbecue, the employer purchased a gas grill equipped with a 20-pound propane tank. To ensure sufficient gas to complete the grilling, the employer then purchased and installed a 40-pound tank. Doing so was difficult, as the larger tank required use of a special adaptor and had to be tipped at an angle to fit under the grill. The larger tanks have a warning label that cautions against using them with grills ordinarily equipped with 20-pound tanks. Several employees were assigned to operate the grill. When it was determined that the grill was not adequately cooking the meat, two of the employees attempted to improve the flow of gas by checking the regulator and repositioning the tank. This caused fuel to escape and a ball of fire to erupt from the grill. One employee suffered severe burns to his hands and the other had his hair singed. Did this employer violate the general duty clause of OSHA?
Safeway v. OSHRC, 382 F.3d 1189 (10th Cir. 2004).

29. How serious a fine should OSHA impose?
OSHA will consider
Number of same violations
Severity of hazard
Number of employees exposed

30. Penalty Adjustments: fines can be reduced by a percentage
OSHA will consider
Good faith
Size of the business
History (safety record)
Abatement period was too short

31. Appeals Employers can appeal: citation, fine or abatement period
Employees can appeal: only abatement period

32. Employer Reporting Responsibilities and Employee Rights
OSHA has strict reporting requirements
Work-related incidents must be reported within 6 days
Work-related accidents resulting in hospitalization or death must be reported within 48 hours
Employees also have rights which must be posted or communicated to them by their employers

33. Recording & Reporting Requirements
Employers not exempt from record keeping are required to establish and communicate to their employees specific procedures for reporting workplace injuries and illnesses.
Employers are required to record (within 6 days of their occurrence):
all work-related injuries or illnesses that result in death,
days away from work,
restricted work,
transfer to another job,
loss of consciousness, or
medical treatment beyond first aid
and any other “significant” injuries or illnesses diagnosed by licensed health care professionals.
Violations of such requirements can be costly.

34. Employer Defenses
Reckless behavior by employees may minimize employer liability
Physical or economic impossibility of compliance may apply if OSHA has issued a variance
Employee reduction of risk may apply if the workplace cannot be made safe
Greater hazard defense applies when compliance is more dangerous than noncompliance

35. Guidance?
Employers should have standard procedures for accident investigation
Efforts should be made to remove actions leading to injury or accident
Employers should implement training programs to teach proper usage of materials or machines

36. R. Williams Construction v OSHRC
Facts: A trench collapse at sewer construction project killed one employee and seriously injured another. A hydraulic jack shoring system which supported the trench wall had been removed the day before the accident, and the walls of the trench were not sloped as required by OSHA regulations. None of the employees had received safety training, and the employer was unfamiliar with OSHA requirements. The on-site supervisor had never read the safety manual. He testified that the employees talked about safety “all the time,” but could not recall when any specific rules were discussed.
Issue: Did the employer meet its obligations under OSHA by relying on general work experience and common sense?
Held: No. The company violated at least four specific provisions of the OSH Act.

37. Preventing Occupational Injuries & Illnesses
Employers should focus on eliminating hazards or reducing them to the maximum extent possible through use of engineering and administrative controls.
Safety rules should be clear, specific, consistent with one another, and strictly enforced.
Employers should be proactive in identifying and abating unsafe conditions in their workplaces.
Recommended: Establish an effective workplace safety program.

38. Responding to Workplace Injuries
Employers should require that employees report all workplace injuries as soon as possible, so that treatment can be provided.
Employers should err on the side of caution in referring injured employees for medical treatment.
Reports of injuries should be investigated immediately and thoroughly.
Hazards that caused the injuries should be identified and abated.
Workers’ compensation claims should not be contested unless there are reasonable grounds for doing so.

39. What Would You Do?
You are the production manager of a small factory, which has been newly relocated to a new facility. You’ve done everything you can to gear up to full production safely. Equipment has been installed by professionals, inspections performed, and safety training sessions held for all, even your experienced workers. Now, about an hour into your first day of full production, as you stand on the floor overlooking the line, you see employees falling ill, some becoming unconscious, and the equipment is still running. In fact, suddenly, you’re not feeling well yourself. What would you do?