Workplace SafetyChapter 15

Workers’ Compensation

State law Benefits for work-related injuries and

illnesses. Benefits might be paid by

– Insurance company– Employer– State

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

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

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

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)

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

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

Employee cannot sue the employer in negligence, but what about a third party?

Employer/insurance carrier usually have a right of SUBROGATION.

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.

Georgia State Board of Workers’ Compensation

Information for Georgia Employers

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)

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)

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

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

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

Excluded from Coverage

All Governments Family business Self-employed Rail Roads Mining Nuclear Farms employing 25 people or less

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

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

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

Does OSHA need a search warrant?

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

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

“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”

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.

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

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.

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).

How serious a fine should OSHA impose?

OSHA will consider– Number of same violations– Severity of hazard– Number of employees exposed

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

Appeals

Employers can appeal: citation, fine or abatement period

Employees can appeal: only abatement period

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

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.

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

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

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.

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.

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.

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?