OSHA Revises Rules and Regulations on Recording and Reporting Occupational Injuries and Illnesses

The Occupational Safety and Health Administration (“OSHA”) has implemented new rules with respect to its recording and reporting regulations under 29 CFR 1904.  The new rule requires certain employers to electronically submit injury and illness data to OSHA that these employers are already required to keep under OSHA regulations.  The new regulations also:  (1) require employers to inform employees of their right to report work-related injuries and illnesses free from retaliation; (2) clarify the existing implicit requirement that an employer’s procedure for reporting work-related injuries and illnesses must be reasonable and not deter or discourage employees from reporting; and (3) incorporate the existing statutory prohibition on retaliating against employees for reporting work-related injuries or illnesses.

 

Although existing law prohibits employers from discharging or otherwise discriminating against an employee who reports an injury, OSHA may not act unless an employee files a complaint within 30 days of the act of retaliation.  This new authority gives OSHA the ability to protect workers who have been subject to retaliation without a complaint filed by the employee.

 

These new rules also prohibit employers from using drug testing, or the threat of drug testing, as a form of retaliation against employees who report injuries or illnesses.  However, according to the United States Department of Labor’s website, the new rules do not prohibit drug testing per se.  If an employer conducts drug testing to comply with the requirements of a state or federal law or regulation, the employer’s motive would not be retaliatory and this rule would not prohibit such testing.

Advanced Technology from U.S. Military will soon find its way into Commercial Diving Operations

The United State Navy has developed the Divers Augmented Vision Display, which is a high-resolution, heads-up display installed directly into a diver’s helmet.  The system will allow the diver to access sonar, text messages, diagrams, and photographs. Significantly, the display will allow for augmented reality videos; technology that allows images and video to be superimposed in real time (think the “monocle” mode in your Yelp app).

 

This technology will assist divers in recovery and salvage operations by offering real-time positional awareness.  The Naval Sea Systems Command is also working on development of enhanced video systems that will increase diver sight in near zero visibility situations.  Like so many other advancements before, it is only a matter of time before these technologies make their way into commercial diving operations.

Implementation and Concerns Pertaining to the IMO’s Verified Gross Mass Regulations

The International Maritime Organization’s (“IMO”) amendments to the Safety of Life at Sea (SOLAS) convention will become legally binding on July 1, 2016.  The changes to SOLAS require exporters to verify the weight of the containers before they are received at the port and loaded aboard the ship.

 

The rules provide two methods for a shipper may obtain the verified gross mass (VGM):

  • Method 1, upon the conclusion of packing and sealing a container, the shipper may weigh, or have arranged that a third party weigh, the packed container.
  • Method 2, the shipper or, by arrangement of the shipper, a third party may weigh all packages and cargo items, including the mass of pallets, dunnage and other packing and securing material to be packed in the container, and add the tare mass of the container to the sum of the single masses of the container’s contents.

 

The new rules have raised numerous concerns, some of which include:

  • Whether there is an agreed format to communicate the verified gross mass;
  • Whether there is a deadline for when the information must be received by the carrier and the terminal operator;
  • Whether the rules obligate the carrier to check the values given by the shipper; and,
  • Whether there is an acceptable margin of error when establishing the verified gross mass.

 

Although there are many more concerns, there is no doubt that additional unforeseen issues may arise once the requirements are put into practice.

 

http://www.aaei.org/resources/new-solas-regulations-and-resources/

Plaintiff’s Construction Defect Claims Against Offshore Spar Manufacturer Dismissed

In June 2011, an offshore worker was injured on a spar (a floating platform shaped like a giant buoy) on the outer continental shelf when he was struck in the face with the flange of a valve.  He filed a personal injury lawsuit against the manufacturer of the spar, McDermott, Inc., alleging his injury was caused by defective design and construction of the spar.

 

McDermott filed a motion for summary judgment, arguing that the plaintiff’s right of action was perempted under Louisiana law.  McDermott asserted that because plaintiff was covered by the Outer Continental Shelf Lands Act (OCSLA), the law of the adjacent state (Louisiana) applied as a surrogate to federal law.  McDermott then pointed to a Louisiana statute, La. R.S. 9:2772, which provides a five year peremptive period in which to bring an action arising out of deficiencies in the design or construction of immovable property.  Because McDermott delivered the finished spar to its customer (plaintiff’s employer) in 2004, plaintiff’s design defect claim filed in 2013, was time barred.  The District Court agreed with McDermott and dismissed plaintiff’s claims.  Plaintiff appealed to the U.S. Fifth Circuit Court of Appeals.

 

On appeal, plaintiff argued that La. R.S. 9:2772 did not apply to his claim because the spar was not an immovable, which was a matter of first impression for the Court.  The Fifth Circuit had previously determined that a spar is not a vessel for purposes of the Jones Act, but no court had ever addressed whether a spar is immovable property under Louisiana law.  The Court noted that fixed platforms are considered immovable property.  The Court further noted that the spar in question was permanently moored to the ocean floor, was intended to remain in its location for its twenty year life, and it would take months of planning to move the spar.  The Fifth Circuit concluded that enough similarities exist between a spar and fixed platform that a spar is immovable property under Louisiana law.  Thus, plaintiff’s design defect claims were dismissed as time barred by state law.

 

Hefren v. McDermott, Inc.