Important Cal/OSHA Issues that California Employers Must Track [Webinar Recording]

On July 10, 2018, Conn Maciel Carey attorneys Andrew J. Sommer, Eric J. Conn, and Megan S. Shaked presented a webinar: “Key Cal/OSHA Issues that California Employers Must Track.”

The state of California’s Division of Occupational Safety and Health, better known as Cal/OSHA, is perhaps the most aggressive and enforcement-heavy approved state OSH Program in the nation.  California employers face a host of requirements that other employers around the country do not.  Likewise, the Cal/OSHA inspection and appeal process creates several unique landmines for California employers.

Of particular significance, in the coming year, California employers can expect an uptick in Cal/OSHA penalties as result of two significant changes, one adopting higher maximum civil penalty authority, and the other changing how the agency finds and cites violations characterized as Repeat.

During this webinar, participants learned about:

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Cal/OSHA Compels Hospitality Employers to Clean Up Their Act, Ergonomically Speaking

By Aaron R. Gelb and Andrew J. Sommer

Musculoskeletal disorders (MSDs) are the single most common type of work-related injury, but federal OSHA has struggled for decades to develop a coherent regulatory and/or enforcement strategy to address the hazards that cause these ergonomic injuries.  Where federal OSHA fell short, the State of California has picked up the slack, with Cal-OSHA recently finalizing a safety standard regarding Housekeeping Musculoskeletal Injury Prevention.  The standard, which will go into effect this summer applies to all lodging establishments that offer sleeping accommodations available to be rented by members of the public, and requires operators to develop, implement and maintain a written Musculoskeletal Injury Prevention Program tailored to hazards associated with housekeeping.

Background About Ergonomics

An ergonomic hazard is a physical factor within the work environment that has the potential to cause a musculoskeletal disorder (MSD).  MSDs are injuries and disorders that affect the human body’s movement or musculoskeletal system; i.e., muscles, tendons, ligaments, nerves, discs, blood vessels, etc.  Common ergonomic hazards include repetitive movement, manual handling, workplace design, uncomfortable workstation height, and awkward body positioningThe most frequent ergonomic injuries (or musculoskeletal disorders) include muscle/tendon strains, sprains, and back pains, Carpal Tunnel Syndrome, Tendonitis, Degenerative Disc Disease, Ruptured / Herniated Disc, etc., caused by performing the same motion over and over again (such as vacuuming), overexertion of physical force (lifting heavy objects), or working while in an awkward position (twisting your body to reach up or down to perform a work task).

MSDs are the single most common type of work related injury.  According to Bureau of Labor Statistics data, MSDs alone account for nearly 30% of all worker’s compensation costs.  OSHA estimates that work-related MSDs in the U.S. alone account for over 600,000 injuries and illnesses (approx. 34% of all lost workdays reported to the BLS), and employers spend as much as $20 billion a year on direct costs for MSD-related injuries and up 5x that on indirect costs (e.g., lost productivity, hiring and training replacement workers, etc.).

Federal OSHA’s Ergonomics Enforcement Policy

Nevertheless, federal OSHA has been lost in the woods for years searching for a coherent ergonomics enforcement policy.  In the final days of the Clinton Administration in November 2000, federal OSHA promulgated an extremely controversial midnight Ergonomics Standard, requiring employers to take measures to curb ergonomic injuries in the workplace.  Continue reading

California “Suitable Seating” – the Legal and Ergonomics Landscape [Webinar Recording]

On Tuesday, May 3, 2016, Andrew J. Sommer (employment law partner at Conn Maciel Carey) and Brandy Ware (PhD Ergonomist and Principal at JFAssociates) presented a webinar about the legal and practical implications of California’s “Suitable Seating” law and litigation landscape.

In advance of the webinar, the employment attorneys at Conn Maciel Carey and the Ergonomics Experts at JFAssociates co-authored a detailed article about the California Supreme Court’s new, significant opinion that changed the landscape of California’s suitable seating in the workplace requirements.  Specifically, the new ruling places the question of whether the “nature of the work reasonably permits the use of seats” squarely at the center of a new cottage industry of class and collective action lawsuits in California.

This joint webinar by Conn Maciel Carey’s Employment Law Practice and the leading ergonomics experts at JFAssociates reviewed:

  1. The California legislation that mandates suitable seating;
  2. The First wave of law suits invoking the suitable seating requirements;
  3. The California Supreme Court’s recent decision and what it means for the future of suitable seating cases; and
  4. Practical and expert witness strategies to avoid and defend against suitable seating law suits.

Here is a link to a recording of the joint suitable seating webinar.

Article: California Supreme Court Ruling on Suitable Seating: Legal and Ergonomics Perspectives

By Andrew J. Sommer, Esq. and Brandy Farris Ware, PhD, CPE, CSSBB

A recent California Supreme Court ruling provides crucial new guidance on how courts should weigh the evidence in so-called “suitable seating” cases, which employee litigants are bringing under the state requirement that employers provide seats to workers where the nature of their work “reasonably permits” the use of seating.

This is a key emerging issue for the Golden State’s business community, with a new cottage industry of lawsuits stemming from a state appellate court decision several years ago allowing “suitable seating” litigation under the California Private Attorney General Act (PAGA). The ruling encouraged new lawsuits because penalties as well as attorney’s fees and costs may be awarded under PAGA.

The California Supreme Court handed down an opinion April 4, 2016 in response to questions posed by two federal lawsuits, setting out new ground rules for what actually constitutes “suitable seating” under the law. Suitable SeatingEmployers with locations in California are well-advised to evaluate their work environments in light of these latest developments and consider the need for workplace safety experts to assess their individual circumstances. Not only can such evaluations, based on the new Supreme Court guidance, help employers head off litigation (or at least reach a favorable outcome if sued), they also can lower other risk factors and costs like worker’s compensation.

The Court adopted a fact-based approach that depends not on the entire job, but on Continue reading

A Healthy Dose of OSHA Enforcement Coming to the Healthcare Industry

By Eric J. Conn and Kathryn M. McMahon

On June 25, 2015, the Occupational Safety and Health Administration (OSHA) issued an Enforcement Memorandum entitled: Inspection Guidance for Inpatient Healthcare Settings.  Health Initiative 1The Enforcement Memorandum expands the scope of inspections OSHA will conduct at hospitals, nursing homes and other healthcare facilities as part of an on-going enforcement effort targeting the healthcare industry.

OSHA’s Healthcare Enforcement Initiative

OSHA’s healthcare enforcement initiative covers “Hospitals” (NAICS 622) and “Nursing and residential care facilities” (NAICS 623). It requires all OSHA inspections (whether programmed or in response to an incident of complaint) in the covered industries to include an evaluation of the following five major hazards:

  • Ergonomics (i.e., musculoskeletal disorders from patient/resident handling);
  • Bloodborne pathogens;
  • Workplace violence;
  • Tuberculosis; and
  • Slips, trips and falls.

This initiative follows the April 2015 expiration of the Nursing Home National Emphasis Program, which also focused on similar hazards.

OSHA’s increased scrutiny of the healthcare industry can be attributed to Continue reading