On Feb. 1, 2019, the Occupational Safety and Health Review Commission (OSHRC) reversed an OSHA citation issued to Suncor Energy (U.S.A.) Inc., as the controlling employer, for a fall protection violation. In this ruling, the OSHRC found that as a controlling employer, Suncor was not liable for two main reasons. First, it had a robust safety program in place that not only met, but exceeded OSHA’s minimum standards. Second, it had a rigid enforcement program that removed employees from the worksite for a single violation of its fall protection safety procedures. This decision emphasizes that a controlling employer’s safety role is secondary. The OSHRC then concluded that, given the massive scope of the project, Suncor’s robust safety program, and its zealous enforcement efforts, there was insufficient evidence to support a citation.

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On Feb. 28 the Occupational Safety and Health Review Commission (OSHRC) reversed a citation issued to A.H. Sturgill Roofing, Inc. for the heat-related death of an employee, finding that all of the elements of proof of the violation had not been met by the Secretary of Labor. Sturgill’s citation was for a general duty clause violation for exposing its employee “to the hazard of excessive heat from working on a commercial roof in the direct sun.”[i]   In response to this ruling, the way employers defend against heat-related OSHA citations for violations of the general duty clause may change.

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Hahn Loeser is involved in a construction fatality where the Cleveland OSHA office’s compliance officer wanted to use a drone to fly over the site to photograph and videotape the site and the equipment involved in the fatality. OSHA agreed to share the drone footage with the employers involved in the OSHA investigation. This request came as part of OSHA’s new inspection procedure.

On May 11, 2018, OSHA’s Director of Enforcement Programs issued a memorandum to all of the OSHA Regional Administrators addressing the use of Unmanned Aircraft Systems (DRONES) as a method for OSHA to collect evidence during inspections.

Currently, the OSHA compliance memorandum requires OSHA to obtain express consent from the employer prior to using any drone on an OSHA inspection. However, we predict OSHA will seek an expanded use of drones for inspections and compliance in the future.


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Effective October 1, 2018, Federal Occupational Safety and Health Administration (OSHA) has created a new National Emphasis Program (Directive Number CPL-02-00-161) for Trenching and Excavation due to a recent spike in trenching fatalities nationwide.

This new Program provides updated guidance and increased enforcement on the National Emphasis Program OSHA has had in place for trenching/ excavation since 1985. (CPL-02-00-269). The first three months of this new National Emphasis Program will focus on educational outreach, followed by enforcement.

Under these new guidelines, states must implement and adhere to the new Trenching/Excavation National Emphasis Program within six months, or by April 1, 2019.


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