An employee arrives at work, parks his car in the company parking lot, and as he is getting out of his car he slams the car door shut and “pinches” his finger. Or she slips while exiting the car and falls onto the parking lot, sustaining a knee injury. These incidents are considered by the Occupational Safety and Health Administration to be work-related and would be OSHA recordable, assuming other criteria for recording are met (the injury requires medical treatment beyond first aid or results in days away from work), according to Jackson Lewis, a national law firm.

In a recently released letter of interpretation OSHA has narrowed the exception to the recordkeeping regulation that injuries are not recordable if they are caused by a motor vehicle accident on company property, Jackson Lewis says. The law firm advises that employers who are required to keep OSHA logs should adjust their recordkeeping procedures to account for the new interpretation.

Ordinarily, injuries caused by a motor vehicle accident and occurring on a company parking lot while the employee is commuting to or from work is not recordable, Jackson Lewis says, but OSHA has interpreted “motor vehicle accidents” to mean accidents caused by moving vehicles, not stationary ones. Thus if an employee is injured in an accident involving a stationary vehicle, it could be reportable.

A nursing home failed to properly compensate employees for travel expenses and non-work time spent receiving treatment pursuant to the Occupational Safety and Health Administration’s Bloodborne Pathogens Standard, the Third Circuit decides.

The OSHA rule requires employers to make treatment available “at no cost to employees” for occupational exposure to bloodborne pathogens. Two nursing home employees had incurred “needlestick” injuries while at work, and each sought treatment at the end of his or her respective shift at a designated off-site medical facility, and returned to the off-site facility for periodic follow-up treatment during non-work hours. The nursing home paid for the cost of the medical evaluations and procedures, but did not reimburse the employees for the non-work hours they spent receiving either the initial or follow-up treatments. The company also did not compensate the employees for travel time or expenses related to the treatments.

The Dept. of Labor interprets the “no cost” rule to include compensation for non-work time and travel expenses, and the Court holds that this is a reasonable interpretation.

The nursing home argued that it did not have “fair notice” of the OSHA rule interpretation since it appeared to contradict an earlier Fair Labor Standards Act opinion letter which stated that “[i]n order for time spent waiting for or receiving medical attention or treatment to be compensable, the visit to the doctor must be at the direction of the employer and it must occur during the employee’s normal work hours on days when the employee is working.” The Court points out that the FLSA opinion letter did not address compensation for travel expenses, was issued by a different agency, and concerned a different regulation promulgated under a different statute. The Court also notes that a later OSHA opinion letter should have provided the company with fair notice about its interpretation. Secretary of Labor v. Beverly Healthcare-Hillview

In 1999, the Occupational Safety and Health Administration proposed regulations requiring companies to pay for personal protective equipment such as hard hats, goggles, face shields, protective clothing—except for safety-toe shoes, prescription safety eyewear, and logging boots. Although hearings on the rule were held and closed in 1999, no action was taken on finalizing the rule. In 2004, OSHA issued a notice to reopen the public record on how requiring employers to pay for the equipment relates to employee “tools of the trade.” The AFL-CIO and the United Food & Commercial Workers Union filed a federal court suit Jan. 3 to compel the finalization of the PPE rule within 60 days of the court’s order. A hearing has not yet been scheduled.

A draft Occupational Safety and Health Administration guidance recommends employers with high to medium risk of flu exposure stockpile facemasks and respirators in advance of a pandemic. Although emphasizing that the guidance is advisory, OSHA says employers with medium exposure risk (schools, high population work environments, high volume retail) should stockpile up to 240 facemasks per employee for a pandemic (to cover 120 workdays). High risk employers (healthcare, emergency medical services, first responders) are advised to stockpile up to 480 facemasks and 960 respirators per employee.

According to the draft guidance, manufacturing capacity at the time of an outbreak would not meet the expected demand of respiratory protection devices during a pandemic, and the stockpiling would lessen the impact of an outbreak on the business. The guidance estimates the unit cost of facemasks would range from $0.12 to $0.20; respirators from $0.50 to $3.00 each.

The Occupational Safety and Health Administration has issued fact sheets on whistleblower protection for employees in the trucking and transportation industries. The fact sheets are also useful for industry employers to review for coverage, what are considered to be protected activities, and what would constitute unfavorable personnel actions under federal law.

The U.S. Dept of Labor has announced it will review or develop certain rules involving the Occupational Safety and Health Administration, the Employee Benefits Security Administration, and the Employment Standards Administration (ESA) in 2008. The OSHA proposes rules covering occupational exposure to diacetyl, a major component of artificial butter flavoring, and extending confined-space protection to construction workers.

The ESA proposes to establish standards and procedures allowing the Office of Labor Management Standards to revoke the privilege of a union to file a simplified annual financial disclosure report, and instead requiring it to file a more detailed report. That and other proposed revisions to the required labor union reporting are supposed to improve financial disclosures and clarity about receipts and disbursements.

The Occupational Safety and Health Administration has issued its final rule requiring employers to pay for required personal protective equipment, with the exception of certain safety-toe shoes, prescription safety eyewear, and ordinary or everyday clothing. In addition, lost or intentionally damaged protective gear does not have to be replaced at the employer’s cost. The rule affects general industry, shipyard employment, marine terminals, longshore, and construction. It goes into effect 90 days from the Nov. 15 date of publication in the Federal Register, and must be implemented within six months by employers. Hawaii employers should note that HIOSH already requires employers in Hawaii to pay for personal protective equipment required by HIOSH regulations, except where the PPE is very personal and usable by the employee off the job (such as safety shoes and prescription safety glasses). See Haw. Admin. Rule §12-64.1-3.

The Occupational Safety and Health Administration has released a revised It’s the Law poster, but it will not impact Hawaii employers since businesses here must post the Hawaii Occupational Safety and Health Law poster issued by the Dept. of Labor and Industrial Relations (see your all-in-one state poster). Be wary of poster companies who will want to sell you unnecessary and/or already free posters.

The Occupational Safety and Health Administration has unveiled a new workplace guidance to help employers prepare for an influenza pandemic. The plan divides workplaces and operations into four risk zones according to the employees’ likely exposure to the flu virus. Recommendations for employee protection are presented for each of the four risk levels, and include engineering controls, work practices, and use of personal protective equipment. See Guidance on Preparing Workplaces for an Influenza Pandemic.

The Occupational Safety and Health Administration reminds covered employers that beginning Feb. 1, 2008, they must post a summary of the total number of job-related injuries and illnesses that occurred during 2007. Employers are required to post OSHA Form 300A (summary). The 2007 summary must be posted from Feb. 1 to April 30, 2008. Employers with 10 or fewer employees and employers in certain industries are normally exempt from federal OSHA injury and illness recordkeeping and posting requirements. A list of exempt industries in the retail, services, finance, insurance and real estate sectors is posted on the OSHA Web site.

The Occupational Safety and Health Administration has issued a directive to its personnel concerning the accessing of personally identifiable employee medical records during compliance reviews or where OSHA standards require such information. The directive notes that an employee’s right to privacy regarding their health information “is not absolute,” and in order for OSHA to carry out its statutory obligations, it is necessary for it to review certain medical information of employees. The directive is instructive for employers in determining what kind of records and medical information OSHA is entitled to obtain.

The U.S. Occupational Safety and Health Administration has prepared a variety of PowerPoint presentations and lesson plans to assist trainers conducting OSHA’s 10-hour General Industry outreach training for workers. The presentations emphasize hazard identification, avoidance, and control; and cover topics such as bloodborne pathogens, fire plans, hazard communication, and personal protective equipment, among others. See OSHA’s training page for the programs available for downloading.