Kyle Koenig, CSP, EMT’s Post

If there was no underlying injury, or event, OSHA might say your health and safety plan was just fine! But, if there's an injury - especially a fatality - everything changes! Now, all of sudden, you should have done this, that, and maybe a whole lot more. Welcome to another level of scrutiny! (We encountered this in a matter this week.) But, is this fair? What's right, and compliant, should be right, and compliant, in all circumstances. Wouldn't you agree? However, get ready for OSHA to work backwards. Takeaway: If something goes wrong, you might need to have been MORE THAN compliant. If you don't understand what that means, ask OSHA! But, just remember, could have, should have, is not a legal standard. What controls is the law - end of story! #OSHA #safety

Employers, you can always do the right thing, regardless of what's going on with OSHA! We have a fatality matter - and a General Duty Clause violation is coming. Literally, it's got to be in the mail. While I firmly believe our client has STRONG legal defenses and, fortunately, we will be given the opportunity to fully assert them (read: fight) and force OSHA to prove each of the multiple legal elements necessary to establish a GDC violation, our client has already done the right thing - regardless of what we believe will be a legally-insupportable Citation. Our client has already made enhancements to it's existing health and safety program. And they are really really good. And the resolution of the OSHA matter will have not one shred of an impact on our client's health and safety plan. Our client had no legal requirement to do what it did, didn't consider if/how the abatement would impact the pending OSHA matter, and didn't ask for our feedback. Instead, the client simply DID THE RIGHT THING - AND I MIGHT ADD, DID IT WELL! And, I am sure it wasn't cheap. It's because I know full well - our client cares. I love seeing that. Maybe there's a slogan out there that all companies can think of - something about just doing it? #OSHA #safety

#employers #doingtherightthing Attention all employers! As we navigate the ever-changing landscape of health and safety regulations, it is important to remember that we can always do the right thing, regardless of what is going on with OSHA. Recently, one of our clients received notice of a fatality matter and a potential General Duty Clause violation. While we are confident in our legal defenses, our client has already taken the necessary steps to enhance their health and safety program, without any legal requirement to do so. This just goes to show their commitment to prioritizing the safety and well-being of their employees. Let's all take a page from their book and remember that doing the right thing is always the best course of action. After all, safety should never be compromised. #OSHA #safety #employers #doingtherightthing

Employers, YOU caring can be the "X" factor in an OSHA matter. Today, we had an informal conference. A lot was at stake. The presentation to OSHA consisted of three parts: (1) a description of the positive elements of our client's health and safety program and efforts; (2) a description of the enhanced safety measures our client immediately took after OSHA showed up, but before we were retained; and (3) two independent legal defenses that, we think, required OSHA to withdraw the Citation. We thought our legal defenses were strong, BUT, we could anticipate counter-arguments. And, it was agreed - if OSHA didn't see it our way today, we (with our client's blessing) were gearing up for a future trial. After our presentation, OSHA agreed to withdraw the Citation. So, what won it? I am sure going to trial was not an attractive option to OSHA, but - our CLIENT is exactly what our CLIENT needed to win this matter. Stated otherwise, our CLIENT did the right thing, our CLIENT cared, our CLIENT was credible, and our CLIENT is the type of company OSHA wants to support. When our CLIENT spoke, OSHA listened. Moral of the story: There is no risk, EVER, in doing the right thing. Make it your Standard Operating Procedure. Others will want to help you, even OSHA! They can see it. #OSHA #safety

Just because you're fighting an OSHA citation doesn't mean you don't care about safety! Actually, it means you DO CARE! We have MANY clients who fight OSHA very hard on legal elements. And we think creatively and allege, and seek to prove, various defenses - and, even, get ready, argue that OSHA does not have enough to prove its case. And, guess what, for the most part, they all have exemplary health and safety programs - or, at a minimum, they have an exemplary mindset. So, what is the correct mindset? In my view (not a HO, to be clear), the correct mindset is that there is no such thing as perfection. But, you have to commit to chasing perfection - whatever "perfection" means. The second you think you are "good" on the health and safety front, you are in TROUBLE. You cannot relax. That's the occupational hazard of holding a role in occupational safety and health. There is no need to apologize for defending an OSHA Citation with everything you've got. It is your right - we, in fact, love that role. And it is largely separate from what you do with your safety and health plan. The Point: An OSHA enforcement action gives you an opportunity to analyze your health and safety plan. The decision to defend allegations, however, alone, has no bearing - ultimately - on what you think about safety or how much you care! You can do both! #OSHA #safety

The March 2, 2024 deadline to submit your OSHA Form 300A data is almost here. If you're an establishment with 100 or more employees, it's imperative that you electronically submit your summary of recordable work-related injuries and illnesses for 2023. This isn't just a suggestion – it's a mandate under OSHA's updated requirements, applicable to those covered by Federal OSHA as well as approved state plans. For detailed guidance on fulfilling your submission requirements, get in touch with the OSHA attorneys at Sheehy, Ware, Pappas & Grubbsby heading to the link below: https://lnkd.in/g6tKMe6S #OSHA #WorkplaceSafety #Compliance

Sometimes you need to insist you’re right - and simply stand your ground. We had an OSHA matter just get resolved. The citation was roughly $30k and OSHA had offered to reduce the penalty to $6k. This was all well and good, except for the fact we believed OSHA could not - LEGALLY - establish all four elements necessary to establish either of the alleged violations. But, there was an injury to our employee in the case and, we think, OSHA worked backwards and concluded there must be violations. I can’t say I blame OSHA for taking the approach, but - folks - these are legal matters and OSHA must establish all of the required legal elements. It’s just that simple. So, today, after insisting and maintaining our position for some time, OSHA agreed to withdraw both violations. And, the matter was actually in the hands of the Solicitor’s Office. I wrote to our client and said exactly what is true - I love sending updates like this and also, I am GRATEFUL that our client gave us the opportunity to assist. There is nothing worse (at least not to an OSHA attorney!) than a company having violations on its record that - truly - do not belong. If you were wondering, our client has an excellent, sophisticated health and safety program. There were no issues there. I have to say it: yes, all cases are different; yes, this is not legal advice; yes, prior outcomes don’t dictate future results (you know, all the disclaimers). That said, see above! #OSHA #safety

Times have changed The old days - 1. OSHA Citations were quickly resolved based on friendships/relationships with the Area Director. 2. If you litigated, the Solicitor's Office attorneys would bury you with discovery if you didn't settle and enjoy a perceived "upper hand" - after all, you don't mess with the government! These days - 1. OSHA Area Offices are more inflexible and require proof, not friendship, to give good deals. 2. If you don't settle, the Solicitor's Office attorneys are receptive, right away, to settlement discussions because the reality is, their caseloads are way too much, employers are choosing to stand up for themselves (there is too much at stake), and employers are no longer intimidated by discovery - and employers are making OSHA prove the case. Discovery and trials are not scary anymore! Anyone notice these trends? #OSHA #safety

Isn't it frustrating when you think (no, you know, or as close to knowing as possible) that you are right but OSHA just won't listen - or get your argument? This happens all.the.time. You get cited and you disagree. You tell OSHA why. OSHA seems like it is not listening. Know this, yes, OSHA is listening. But, if that listening does not translate into action in your favor, there is a quite simple remedy. You go to Court and you have the judge decide everything! Why have someone, or an entity, decide such a critical matter for you when they are adverse to you? Have a judge do it. Never feel victimized - never feel like you have no options. No, march into trial and try the case. There, you will be heard! #OSHA #safety

Summer’s on its way! ☀️ And so is the heat. Our latest episode of the Health and Safety Law pod is here. Get it while it’s hot!