Compliance File

OSHA Oversights Skew Workplace Injury Reports
In October, Cal-OSHA was brought to bear for incompletely investigating 64 workplace deaths in Orange County, California from 1998 to 2000.

The Administration only investigated 35 of those deaths and did not determine why workers died in half of those cases.

In many of the cases, investigators routinely showed up at the work site days, and even months, after accidents. And when they did show up, agents made little effort to interview workers or supervisors with limited or no English skills.

In many cases the insufficient accident investigations resulted in low or non-existent fines for the employers, although this is not always the case.

Agency officials blame heavy work loads for these results, as well as a concentrated effort in areas with high injury rates, such as construction. However, Cal-OSHA critics point to the fact that the agency often dismisses the testimony of Spanish speaking witnesses.

Tom Simpson, who supervises workplace death investigations for the Los Angeles County District Attorney’s Office stated that preservation of evidence is at stake in such cases, especially when it comes to eye-witness accident recollections. "We need to get statements from witnesses while their memory is fresh. We want to look at the machinery to see whether it was altered."

BSCs should make sure all relevant staff provide an account and ensure their stories coincide with OSHA accident reports.

ADA
Back Injuries May Not Necessitate a Disability
Automatic job modification for back injuries is one of the biggest misconceptions about work limitations under the Americans with Disabilities Act (ADA). Having a musculoskeletal disorder (MSDs) does not necessarily mean that a person automatically classifies as disabled, as defined under the ADA, and therefore employers are not always legally obligated to accommodate light-duty requests.

One such case where these issues were raised and the claimant lost, was Duncan vs. Washington Metropolitan Area Transit Authority (WMATA).

Jimmy Duncan, the 47-year-old plaintiff in this case who had a history of back injuries, worked as a custodian for the WMATA. Although his initial duties did not require him to lift more than 30 pounds, he was moved into a classification that required heavy lifting — between 75 and 100 pounds — on a regular basis.

On his third night in the new job position, Duncan claimed to have re-injured his back. His physician put him on a 20-pound lifting restriction, which made him unable to perform his new job. Duncan then requested light-duty work. Since there were no light-duty positions available at his work site, he was placed on sick leave and then on leave without pay.

Duncan then failed to provide timely documentation from a physician and was discharged from his position.

He then sued the WMATA for discrimination under the ADA, contending that his back injury was a disability that required accommodating conditions with that did not require lifting.

After Duncan was awarded damages in an initial ADA suit, the WMATA appealed. In the appeal, Duncan was — by law — required to prove he had a disability as defined by the ADA. In doing so, he had to provide evidence of available jobs for which he qualified.

Having failed to provide sufficient evidence to establish the numbers and types of jobs in the Washington, D.C. area from which he was disqualified because of his condition, the jury could not determine that Duncan’s condition was a disability under the ADA. The Court of Appeals then reversed the district court’s decision in favor of the employer.

DOT Revises Driver Drug Testing Regulations
Employees who drive commercial vehicles for carrying equipment and personnel to job sites will be required to comply with the Department of Transportation (DOT) revised rule governing drug and alcohol testing procedures, 49 CFR Part 40.

The revisions are based on a review of comments from interested individuals and organizations, and include more than 100 policy interpretations. The complete text of the revised rules can be viewed here.

IRS Now Requiring Proof
for Tax Collection Hold
Trying to take advantage of the IRS’s six-month hold on all collections actions for affected taxpayers in New York City just became more difficult.

Since the hold applies not only to New York City residents, but also to those whose accountant or attorney has been affected by the tragedy, some people have decided to hire an accountant or lawyer with offices south of 34th Street to capitalize on the situation.

The IRS has become wise to this underhanded maneuver and in many cases is now requiring that the accountants and law firms provide proof that their practice has actually been disrupted.

This information is intended as a summary of legal information and should in no way be construed as legal advice. Contact your attorney before proceeding with any legal action.