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“7 Common Workplace Safety Hazards” #WorkplaceSafety

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“Confined Spaces – “What To Do Before You Enter” #ConfinedSpace #StayAlive

80% of fatalities happened in locations that had been previously entered by the same person who later died.

Each year, an average of 92 fatalities occurs from confined spaces locations due to asphyxiation, acute or chronic poisoning, or impairment.

But, what is a “confined space?”

A confined space is a space that:

  1. Is large enough and so arranged that an employee can bodily enter it;
  2. Has limited or restricted means for entry and exit;
  3. Is not designed for continuous employee occupancy.

Examples of confined spaces include:

  • Sewers
  • Storm drains
  • Water mains
  • Pits
  • And many more

Permit-required confined spaces include:

  • Contains or has the potential to contain a hazardous atmosphere
  • Contains a material with the potential to engulf someone who enters the space
  • Has an internal configuration that might cause an entrant to be trapped or asphyxiated
  • Contains any other recognized serious safety or health hazards

Here are some steps you can take to help ensure the safety of your workers.

1. Is This a Confined Space?

2. Is the Atmosphere Safe?

Testing must be done in several levels of the space because specific hazardous gases react differently to the rest of the atmosphere. Why? Hydrogen Sulfide is slightly heavier than air, while other dangerous gases such as methane may be lighter than air and rise to the top. Only by testing all levels of the tank you are about to enter can you be reasonably sure the atmosphere is acceptable for breathing.

3. How Do I Exit Safely?

Before you start thinking about entering, first make sure you can get back out. Meaning you have a rescue plan and are working with someone else who can provide for rescue.

If you don’t have a rescue plan, don’t enter.

4. How Do I Enter Safely?

Does the job or project require special equipment to get in and out of the space, such as a body harness?

5. Will The Atmosphere Stay Safe?

Once you’ve established that the atmosphere is safe to enter, you next have to know that it will stay that way. Which leads us to our next point.

6. Does the Space Need Ventilating?

If the air is found to be unsafe within the confined space because of existing fumes or gas, or if the work being done will contribute to a degradation of the breathable atmosphere, the space needs to be ventilated and you need to be using an air monitoring device.

7. Equipment Check

It’s important to check your equipment before beginning any sort of confined space entry work. Has your gas detector been bump-tested or recently calibrated? Have all lanyards and lifelines been checked for wear? Have harnesses been properly stored?

8. Lighting

Confined spaces are often cramped, dark and awkwardly shaped. A well-lit worksite helps workers avoid injury.

9. Communication

Radios are a great way to stay connected with workers, but also keep in mind that, nothing can replace having a standby worker positioned at the exit when workers are in a confined space. This tried and true system allows the outside person not only to communicate with workers within the space but also to call for help if it is needed.

10. Are you and your crew up to the task?

Can each team member be relied upon in a life-threatening situation?

This list is not meant to be comprehensive, check the OSHA Standards for that.

Stop to consider the dangers before you enter, and be mindful that confined spaces can become dangerous after you have entered.

Source: Vivid Learning Systems – Safety Toolbox

“OSHA 300 Logs: Four Common Mistakes Employers Make”

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This is your annual reminder about the important annual February 1st deadline to prepare, certify and post your OSHA 300A Annual Summary of workplace injuries and illnesses, for all U.S. employers, except those with ten or fewer employees or those whose NAICS code is for the set of low hazard industries exempted from OSHA’s injury and illness recordkeeping requirements, such as dental offices, advertising services, and car dealers (see the exempted industries at Appendix A to Subpart B of Part 1904).

Specifically, by February 1st every year, employers must:

  • Review their OSHA 300 Log(s);
  • Verify the entries on the 300 Log are complete and accurate;
  • Correct any deficiencies identified on the 300 Log;
  • Use the injury data from the 300 Log to calculate an annual summary of injuries and illnesses and complete the 300A Annual Summary Form; and
  • Certify the accuracy of the 300 Log and the 300A Summary Form.

The Form 300A is a summation of the workplace injuries and illnesses recorded on the OSHA 300 Log during the previous calendar year, as well as the total hours worked that year by all employees covered by the particular OSHA 300 Log.

Four Common 300A Mistakes that Employers Make

We see employers make the following four common mistakes related to this annual injury and illness Recordkeeping duty:

  1. Not having a management representative with high enough status within the company “certify” the 300A;
  2. Not posting a 300A for years in which there were no recordable injuries;
  3. Not maintaining a copy of the certified version of the 300A form and
  4. Not updating prior years’ 300 Logs based on newly discovered information about previously unrecorded injuries or changes to injuries that were previously recorded.

Certifying the 300 Log and 300A Annual Summary

The 300 Log and the 300A Annual Summary Form are required to be “certified” by a “company executive.” Specifically what the company executives are certifying is that they:

  1. Personally examined the 300A Annual Summary Form;
  2. Personally examined the OSHA 300 Log from which the 300A Annual Summary was developed; and
  3. Reasonably believe, based on their knowledge of their companies’ recordkeeping processes that the 300A Annual Summary Form is correct and complete.

A common mistake employers make is to have a management representative sign the 300A Form who is not at a senior enough level in the company to constitute a “company executive.”  As set forth in 1904.32(b)(4), company executives include only the following individuals:

  • An owner of the company (only if the company is a sole proprietorship or partnership);
  • An officer of the corporation;
  • The highest ranking company official working at the establishment; or
  • The immediate supervisor of the highest ranking company official working at the establishment.

Posting the 300A Annual Summary

After certifying the 300A, OSHA’s Recordkeeping regulations require employers to post the certified copy of the 300A Summary Form in the location at the workplace where employee notices are usually posted.  The 300A must remain posted there for three months, through April 30th.

Another common mistake employers make is to not prepare or post a 300A Form in those years during which there were no recordable injuries or illnesses at the establishment.  Even when there have been no recordable injuries, OSHA regulations still require employers to complete the 300A form, entering zeroes into each column total, and to post the 300A just the same.

Maintaining the 300A for Five Years

After the certified 300A Annual Summaries have been posted between February 1st and April 30th, employers may take down the 300A Form, but must maintain for five years following the end of the prior calendar year, at the facility covered by the form or at a central location, a copy of:

  • The underlying OSHA 300 Log;
  • The certified 300A Annual Summary Form; and
  • Any corresponding 301 Incident Report forms.

In this technology era, many employers have transitioned to using electronic systems to prepare and store injury and illness recordkeeping forms. As a result, another common mistake employers make is to keep only the electronic version of the 300A, and not the version that was printed, “certified” typically by a handwritten signature and posted at the facility. Accordingly, those employers have no effective way to demonstrate to OSHA during an inspection or enforcement action that the 300A had been certified.

Finally, another common mistake employers make is to put away old 300 Logs and never look back, even if new information comes to light about injuries recorded on those logs.  However, OSHA’s Recordkeeping regulations require employers during the five-year retention period to update OSHA 300 Logs with newly discovered recordable injuries or illnesses, or to correct previously recorded injuries and illnesses to reflect changes that have occurred in the classification or other details.  This requirement applies only to the 300 Logs; i.e., technically there is no duty to update 300A Forms or OSHA 301 Incident Reports.

Source: JD Supra – Eric Conn

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“What Should You Do When OSHA Shows Up At Your Door” #OSHA #Inspection

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1/27/2017 by Krista Sterken  | Foley & Lardner LLP

You arrive at work bright and early, only to find that someone beat you there — OSHA is waiting to perform an inspection. Now what? Many employers think they have little say in what happens next. Actually, employers have many choices to make, starting as soon as OSHA arrives.

The first thing step is simply bringing the compliance officer to a conference room or other appropriate location. You should select a location that is private and located close to the entrance, so you do not have to walk the compliance officer through any more of your facility than necessary. If the compliance officer happens to see something that may be a violation, this could provide the basis for a citation and/or expansion of the inspection.

Next, it is time to collect some information — you need to understand why OSHA is there. There are three main types of inspections: complaint inspections (conducted in response to a safety complaint), report inspections (conducted in response to a report of an employee death, injury, or illness), and program inspections (conducted under one of OSHA’s emphasis programs, which focus on particular industries or hazards). In some cases, a previous citation might provide the basis for a follow-up inspection.

You also need to know what OSHA intends to do. The inspection should be tailored to the reason for the visit. For example, a complaint inspection should be limited to areas related to the complaint. Program inspections are dictated by the focus of the program — you can obtain more information from OSHA’s website. All inspections should follow OSHA’s Field Operations Manual.

Finally, you must decide whether to agree to OSHA’s inspection plan. If OSHA identified a legitimate basis for the inspection and an appropriate inspection plan, then you might decide to allow the inspection to begin. However, if you have concerns, you have the right to refuse entry and require OSHA to return with a warrant (unless there is an imminent danger, in which case OSHA must be permitted immediate entry). If you require a warrant, OSHA will have to persuade a judge that its intended inspection is appropriate.

Employers are often nervous about requiring a warrant. However, you have the right to do so. OSHA understands this, and is not permitted to retaliate against you in any way. Requiring a warrant can be an effective way to impose fair parameters for the inspection.

Once the inspection has started, you are only at the very beginning of the process. Because there will be countless other important decisions, involve counsel early (preferably, as soon as OSHA arrives). Every company should also give some advance thought to its “OSHA plan,” identifying specifically how a request for inspection will be handled long before a compliance officer shows up on the company’s doorstep.

“How You Could Test Positive For Drugs When You’re Not”

An estimated 45 to 50 million employees are drug tested each year in the United States. Are they accurate every time, though? Turns out, it can be wrong on more occasions than one might expect.

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“Safety Topic Information For a Better Safety Committee at Your Workplace”

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“The Complexities Of Medical Marijuana In The Workplace” #Safety #RX

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With the growing list of states legalizing marijuana, are workplace drug policies up in smoke? As the new year begins, Arkansas, Florida and North Dakota join the growing list of states that have legalized medical marijuana. Currently, 28 states* and Washington, D.C., have legalized marijuana use for certain medicinal purposes, and eight states** and the District of Columbia have legalized marijuana for recreational purposes to some extent. The rules and regulations implementing these changes won’t be finalized and put into effect immediately – for instance, the Florida Department of Health has until July 3, 2017 to promulgate regulations for licensing and distribution and until October 3, 2017 to begin issuing medical marijuana identification cards. Even so, it’s best to analyze the impact of the changing marijuana landscape now and prepare for the future.

The 2016 Election and Marijuana Policy

To be clear, marijuana remains illegal under federal law. As recently as August 2016, the U.S. Drug Enforcement Administration restated that marijuana has no acceptable recreational or medicinal purpose, and should remain a Schedule I substance on the Controlled Substances Act. For perspective, heroin and ecstasy are also classified as Schedule I substances.

President-elect Donald J. Trump did not make marijuana policy a priority during his election campaign, and it’s uncertain how his administration will address this issue. On many other issues, Trump indicates a willingness to defer to states. But, certain of President-elect Trump’s picks, including Senator Jeff Sessions for Attorney General and Rep. Tom Price for Secretary of Department of Health and Human Services, suggest the new administration will be less tolerant of marijuana use. As Attorney General, Senator Sessions could renounce the Cole and Ogden Memos issued under the Obama administration, which, in part, state that the Department of Justice will not interfere with businesses and individuals operating legally under state cannabis laws, as long as organized crime and sales to minors are not implicated. Given Sessions’ comments as a U.S. Attorney in Alabama in the 1980s that he thought the KKK “were OK until I found out they smoked pot,” his criticism of FBI Director James Comey and Attorneys General Eric Holder and Loretta Lynch for not vigorously enforcing the federal prohibition, and his floor speech last year stating that marijuana “is already causing a disturbance in the states that have made it legal,” a change in federal enforcement may be in store.

Workplace Safety Remains a Priority

Employers continue to be required to provide employees with a safe workplace and should not compromise safety due to an employee’s use of any legal prescription medication, including medical marijuana. Under OSHA regulations, employers can continue to have drug-free workplace policies, and should prohibit the use of or being under the influence of controlled substances while at work. An article in the Journal of Occupational and Environmental Medicine from May 2015 noted that there is a “likely statistical association between illicit drug use (including marijuana) and workplace accidents.” Additionally, the National Institute on Drug Abuse reports that marijuana’s effects on attention, memory, and learning can last for days, or even weeks, after use. Companies with employees who work in the public sector, such as in transportation, or employees who work in safety-sensitive positions, or operate heavy machinery, should be especially cautious of safety concerns.

Can an employer continue to enforce a zero-tolerance drug policy with regards to pre-employment screening and random drug testing?

Particularly in the three states where medical marijuana is newly legal (Florida, Arkansas, and North Dakota), employers are left wondering what to do about pre-employment screening and random drug testing.

Employers in states that explicitly say employers have no duty to accommodate medical marijuana users can probably rely on such language when screening or discharging applicants or employees for marijuana-positive drug tests results. In Florida, for example, Amendment 2 provides that the law shall not “require any accommodation of any on-site medical use of marijuana” in any place of employment. This presumably means that in Florida, an employer may prohibit an employee from using and/or being under the influence of medical marijuana at the workplace. Similarly, in 2015, in Coats v. Dish Network, LLC, the Supreme Court of Colorado affirmed the termination of employment of an employee who tested positive for marijuana despite having used the drug off-duty for a medicinal purpose, because such use violated federal law and the employer’s drug policy.

In some states, the medical marijuana laws expressly prohibit employment discrimination against medical marijuana users. There may be a potential risk of a claim (such as for disability discrimination under a state equivalent of the federal ADA) in these states by individuals who use marijuana for a medical purpose and are subjected to adverse employment actions. Where state law requires employers to make reasonable accommodations for medical marijuana users, or makes it unlawful for an employer to take an adverse action against an applicant or employee based on medical marijuana use, employers there must be particularly cautious and may need to modify screening and testing policies in order to remain compliant with state law.

What about post-accident testing?

How do employers reconcile automatic drug-testing required by workers’ compensation laws with the new state laws legalizing medical marijuana? Can an employer still require employees to undergo post-accident testing?

Generally, federal law permits employers to test for drugs during accident investigations. In 2016, in a final rule and subsequent clarifying Memorandum, OSHA stated it does not prohibit employers from drug testing employees who report work-related injuries and illnesses as long as the employer has an objectively reasonable basis for conducting the testing, i.e., that the employer can show a reasonable basis for believing that drug use could have contributed to the reported injury or illness. OSHA prohibits the use of drug testing by employers as a form of discipline against employees who report workplace related injuries or illnesses.

Conclusion

The trend towards legalizing marijuana, at least for medical purposes, has continued at the state level. It remains to be seen how the courts and federal agencies will interpret and enforce the laws in 2017. The bottom line is that employers who have not yet determined how they will deal with workplace issues relating to marijuana should do soon.

 

* Medical: Alaska, Arizona, Arkansas, California, Colorado, Connecticut, Delaware, Florida, Hawaii, Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, Montana, Nevada, New Hampshire, New Jersey, New Mexico, New York, North Dakota, Ohio, Oregon, Pennsylvania, Rhode Island, Vermont, and Washington.

** Recreational: California, Washington, Oregon, Alaska, Colorado, Massachusetts, Nevada, and Maine

Source: JD Supra

“Fall Protection – What’s Required Where?” – “Scissor Lifts”

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First, I want to start off with the “scissor lift” dilemma and confusion. If you talk to two different people, you’ll get two differing opinions. Here are my thoughts on this:

I have watched while the battle has raged over whether the use of personal fall arrest harnesses by scissor lift operators is appropriate. The rationale on each side of the issue; pro and con, is intelligent, compelling, and complete with opinions from well informed, knowledgeable people.

The core argument from the pro-harness side stems from the assertion that scissor lift operators are more or less subject to the same falling hazards as anyone else working at height, so why not wear a harness?

On the con-harness side of things, some of the many the arguments follow the logic that if a scissor lift operator who is tethered to the unit goes over the guardrail, the resulting force(s) exerted on the machine when his/her weight jerks to a stop at the end of the lanyard’s travel could be enough to cause the unit to topple, sending it and the operator down. In addition, so I’m told, as the unit plummets down with the operator in tow, the lanyard serves to worsen things by “slingshotting” the operator into the ground and possibly under the machine, resulting in even greater injury than if he/she were able to free fall or jump clear.

If that’s not enough, neither OSHA regulations or ANSI/SIA standards require the use of personal fall protection harnesses for operators of scissor lifts. In fact, in many cases manufacturers do not provide an anchor point to connect the snap hook of a lanyard to and, OSHA prohibits tying off to a guard rail as per 29CFR 1926.502(d)(23)); “Personal fall arrest systems shall not be attached to guardrail systems.”

Some other issues that I have heard from the con side have to do with things like how wearing a harness restricts the movement of the operator or that wearing a harness may actually lull the operator into a false sense of security. I could go on, but I won’t.

I am going to go on record here and state that I believe scissor lift operators should be required to wear a personal fall restraint system (PFRS) consisting of a full body harness and non-shock absorbing lanyard provided there is an approved anchor point to connect it to. (In fact, if you dig into the OSHA regulations, you’ll find that “If the scissor lift manufacturer provides tie off anchor points at the base of the guardrail system, and the manufacturer’s user instructions require them to be used, then you need to be tied off with a PFRS”.)

Allow me approach each point of the “con” argument and, for what it’s worth, chip in my two cents.

First of all, take note of the suggestion for using a fall restraint harness rather than a fall arrest harness. Fall arrest systems are designed to stop a fall in progress while fall restraint systems prevent a fall from occurring… big difference. No fall means no excessive force on the unit, therefore no tip-over. The operator stays on the platform and the lift stays upright. Granted, a fall restraint harness may restrict the operator’s motion depending on the type of anchor point and how much mobility is actually required, but this is a fair trade in exchange for preventing a fall and possible fatality.

As for the “slingshot” effect, well, the laws of physics do not support that theory. A few centuries ago, Galileo discovered something we know today as, the law of falling bodies. Without going into great detail here, it basically states that everything that falls accelerates toward the earth at a rate of 32 feet per second/per second, until reaching peak terminal velocity (top speed), which is about 120 mph. So, if a scissor lift tips over, the operator and the platform are going to travel toward the ground at approximately the same speed; there will be no “slingshot” effect and certainly no need to jump from the platform. In addition, an operator wearing a PFRS will not sustain further injury because of multiple impacts with the ground from bouncing after the initial impact with the ground.

On the topic of jumping clear of the unit, there are serious concerns about the practicality of that notion. Even a conditioned athlete that is prepared and ready for the unit to tip would have difficulty picking the right moment to leap clear. When an aerial lift goes over it typically happens unexpectedly and quickly. The average operator is unlikely to have the physical prowess or presence of mind to do the right thing at the right time and even if he/she did, they would still have the actual fall to the ground with which to contend.

That brings us to OSHA regulations which, after all, are the law and the law says you don’t have to wear a harness to operate a scissor lift. I am going to avoid getting wrapped up in reg’s here the same way I do when I train operators, suffice to say that we are not attempting to determine if we have to wear it, but whether we should. Allow me to share a bit of wisdom that I usually impart to operators when they get a bit carried away with the law, which is; when you operate aerial lift devices, the only law you need to concern yourself with is the law of gravity. Respect for occupational safety and health laws will affect your relationship with OSHA while respect for gravity will affect your relationship with the ground!

As far as harnesses giving operators a false sense of security, it shouldn’t. It should give them a real sense of security. It is a simple fact that an operator wearing a PFRS is less likely to be killed by falling from the platform, which in itself is reassuring. It is also a fact that more scissor lift operators are killed by falling from the platform than by tipping the unit over and besides, if the unit goes over for any reason, the effect on the operator will be ugly with or without a PFRS.

The bottom line here is that every situation, or in this case, each use of the scissor lift has to be looked at from a different approach, so good judgment and the use of best practices are imperative.

9-23-2016 – Here is a link to a Scissor Lift Manufacturers letter, requiring the use of Fall Protection while using their product. https://goo.gl/hi2mvw

“4 Character Traits Of Respected Safety Leaders”

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If you want to become an effective and respected safety leader, work on these personality traits.

Back in 2009, when Google first launched their Project Oxygen employee survey, they were looking for a way to help their managers be better. They were also looking for ways that managers and supervisors could help engage employees better.

What Google soon discovered from their employees is not what they had thought. Google’s managers were already incredibly technically proficient. But that’s not what Google’s employees necessarily wanted from their managers. Employees wanted more than technical knowledge. Employees wanted managers with great people skills.

Workplaces whose managers have great people skills have lower employee turnover and higher levels of engagement. But where do you as a supervisor or safety manager acquire good people-skills? It turns out, good people skills have much to do with character and personality traits.

There’s an assumption that you already have the basics of safety knowledge under your belt.That needs to be a given. If you don’t have the basics of safety already, you must get busy acquiring those skills. And there’s an assumption that you genuinely want to make your workplace better.

Here are four of the most critical personality traits to have to be able to make you more effective and respected in your supervisory and management duties in safety:

Kindness. You cannot have a successful safety culture without courtesy and respect at the very foundation. Kindness, as a personality trait, is at the foundation of courtesy and respect. It’s impossible to be genuinely courteous if you are mean-spirited. Kindness is crucial to being a respected safety leader. Treating people with kindness is not something you can fake for long. Eventually, you will tire of putting on a fake smile. You will be found out. Kindness comes from genuinely caring about people. When you can offer kindness to one person on a job site, and make the job site safe for one other person, you are being kind to every other person. Kindness is not weakness. It takes strength to openly care about others in a way that they feel it.

Integrity. The Merriam-Webster dictionary defines integrity as the quality of being honest and fair; the state of being complete or whole. But in short-form, people know when someone lacks integrity – or when their integrity can be compromised. Supervisors and safety people with integrity refuse to allow excuses and blame to get in the way of carrying out their safety responsibilities. There are no shortcuts with people of integrity. People of integrity do what they say and say what they do. As the saying goes, they walk the walk. Front-line employees depend on their supervisors and safety people to have integrity. Integrity has a way of transcending a message of “how we do things ’round here.” Remember, employees will always be checking you out to see if you believe what you have to say. If you don’t believe it, your integrity will be suspect.

Humility. Again, like kindness, you can’t fake humility for long. Acting humble and being humble are very different things. Ultimately, what humility really is, is the quality or state of not thinking that you are better than others. Yes, supervisors and safety people may be in superior positions on the hierarchy scale, but that does not make them superior people. No amount of schooling, titles, certifications or money makes one person more superior. In fact, employees instantly know when someone supposes them self to be superior. It’s obvious in the way they communicate and the way that they talk down to employees. Humility is the personality trait that communicates to others that one person is no more important than another. There may be more responsibility with one job over another, but that does not make one person more important than another. Humility builds teamwork.

Generosity. This is what drives giving, understanding and selflessness. The question could be asked: if you could give of yourself to make another person’s circumstances better, why wouldn’t you? Generous people don’t even stop to think about reasons that they wouldn’t. Generous people give. That’s what they do. They give credit, give applause, give responsibility and they give examples of how to do it. Generous people do what they can to make someone else’s day better. Generous people do it without being asked. Generosity is not about money. Generosity is about time, energy, effort and helping others to succeed. Generous people know the words of Bob Dylan who once said, “just when you think you have nothing left to give, you find out you were wrong.”

If you want to become an effective and respected safety leader, work on each of the four personality traits. You will always be able to find work. You will always find yourself surrounded by others who are of like-mind. Besides, who wouldn’t want to work in a job whose supervisor or safety person owned those character and personality traits?

I know they work, I practice them every day!!

Source: Kevin Burns @KevBurnsBGI on Twitter & KevBurns.com

“OSHA’s Wall Of Shame – With Limited Staff, Agency Targets “Severe Violators”

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Source: FairWarning.org – By Paul Feldman and Stuart Silverstein

Soon after beginning their cleanup of a fume-filled tanker car at an Omaha, Nebraska rail maintenance yard, Adrian LaPour and Dallas Foulk were dead.

An explosion that April 2015 afternoon trapped LaPour in a flash fire inside the car and hurled Foulk out the top to his death.

Six months later their employer, Nebraska Railcar Cleaning Services, was hammered by the U.S. Occupational Safety and Health Administration with seven citations for “egregious, willful” workplace violations, along with 26 other charges. The agency proposed fines of nearly $1 million. To top it off, OSHA announced that it was tossing the company into its Severe Violator Enforcement Program, or SVEP.

Six years into the severe violator program – arguably the broadest workplace safety initiative launched during the Obama administration – more than 500 businesses are on its list of bad actors. They include corporate giants such as DuPont and International Paper, each with tens of thousands of employees, as well as more than 300 construction firms, many with fewer than a dozen workers.

Just last week an auto parts maker in Alabama, Ajiin USA, was labeled a severe violator and hit with proposed fines of $2.5 million related to the June death of a 20-year old worker. Regina Allen Elsea, who was two weeks away from getting married, was crushed when a robotic machine she was doing maintenance on abruptly restarted. Ajiin, which supplies automakers Kia and Hyundai, said in a statement it will continue to cooperate with OSHA and that “safety has always been our guiding principle.”

Along with subjecting employers to a form of public shaming, the severe violator program helps OSHA work out settlements intended to force companies to clean up their job safety practices. The program, which replaced a George W. Bush administration initiative that an inspector general’s audit derided as ineffectual, also can result in extra inspections, sometimes at multiple sites, and force companies to hire new safety personnel. The effort, though, faces an uncertain future under the Trump administration.

The severe violator list represents an attempt to deal with an overwhelming regulatory challenge. With OSHA and its state counterparts relying on fewer than 1,850 inspectors to monitor about 8 million workplaces, it would take federal officials 145 years to inspect each job site once, union researchers estimate. The aim of the list is to let OSHA’s limited staff zero in on some of the worst offenders.

David Michaels, the assistant secretary of labor in charge of OSHA, said in an interview with FairWarning that “even if we doubled our inspectors, we would still be able to only get to a small portion of employers. And so we need tools like SVEP, which extend our capabilities and encourage more employers to do the right thing even without inspections.”

But the targeted nature of the program creates a Catch-22. The death of a worker is clearly the worst thing that can happen at a job site. Yet with about 4,800 workplace fatalities a year nationally, putting every company with a death on the severe violator list would overwhelm OSHA and defeat the goal of tougher enforcement for a subset of the worst offenders. For that reason, the death of a worker will put a company on the list only if the circumstances are particularly flagrant or reflect a pattern of reckless conduct. In 2015 only one out of every roughly 200 employers with an on-the-job fatality landed on the list.

At the same time, it’s not certain that the program has effectively deterred recalcitrant employers, as OSHA lacks any comprehensive assessment of its performance. For evidence of the impact, OSHA officials point to settlements they have reached with companies on the list. “There hasn’t been a really good objective evaluation,” said MIT Professor Thomas A. Kochan, co-director of MIT’s Institute for Work and Employment Research.

One critic, John Newquist, (a LinkedIn connection of mine) and former OSHA official in Chicago, said his sense is that among employers, “There’s no fear of OSHA at all.”

Michaels, who will leave the agency by the January 20, 2017, presidential inauguration, expressed hope that the Trump administration won’t dismantle the severe violator effort or other enforcement initiatives. He said tough enforcement protects responsible employers because it “levels the playing field” between them and competitors who skimp on safety. Still, the anti-regulation views of Trump cabinet picks including Andrew Puzder, the president-elect’s choice for labor secretary, are raising expectations of cutbacks in workplace enforcement.

Nebraska Railcar –- currently the target, several sources say, of a Justice Department criminal investigation of last year’s explosion –- highlights how long it can take a wayward company to be put into the severe violator program. Jacob Mack, who worked for the company in 2013, says he told OSHA about brutal conditions long before the deadly blast. “Not a day goes by I don’t remember the hell there,” Mack said.

The company wasn’t listed until after the explosion even though it, as well as other businesses controlled by Nebraska Railcar’s majority owner, Steven Braithwaite, had repeatedly been cited by OSHA dating back to 2005. That includes a 2013 citation involving a fire risk from oil storage tanks. Nebraska Railcar stayed off the list, though, partly because its prior violations didn’t involve hazards the agency deemed high-priority, such as falls, amputations, cave-ins and exposure to toxic chemicals.

(Nebraska Railcar is contesting its current OSHA citations, as are other companies cited in this story that haven’t reached a settlement with the agency. Nebraska Railcar and most of the other companies have not responded to requests for comment.)

Case Farms, a leading poultry processor with plants in Ohio and North Carolina, finally landed on the list in 2015 after being cited for more than 350 violations over a 25-year period, according to OSHA. The case, which processes nearly 3 million chickens a week for fast food chains and supermarkets, last year was fined $861,500 for 55 violations, including amputation and fall hazards, at its Winesburg, Ohio, plant.

Sometimes disaster has struck even after companies were put in the program. One such case, in October, spurred a public outcry in Boston. Two laborers working for Atlantic Drain Service died after being trapped in a trench that was inundated by water, dirt, and debris after a pipe burst. Atlantic Drain had been on the severe violator list since 2012.

The October deaths “were entirely preventable,” The Boston Globe wrote in an editorial, “had city and state officials taken minimal steps to investigate the construction company before issuing permits.”

Whatever the shortcomings of the severe violator program, labor advocates say, the wide range of companies it snares -– and the number and gravity of their violations -– underscore its importance and the need to protect workers from callous bosses. OSHA’s other options are limited. The agency lacks the authority to shut down dangerous workplaces and its fines generally remain modest despite an increase that took effect in August.

“OSHA is one-eighth the size of the EPA, it has the lowest penalties of almost any government agency – but even though it is small, it is critical that enforcement is maintained,” said Deborah Berkowitz, the OSHA chief of staff from 2009 to 2013. The severe violator list, she conceded, is “not an end-all tool,” but an important tool.

An example OSHA officials point to is Ashley Furniture, the nation’s largest retailer of home furnishings. It was listed last year after being cited for 38 violations, 12 of them willful, and assessed $1.76 million in fines. Inspections showed more than 1,000 work-related injuries in less than four years at its plant in Arcadia, Wisconsin.

Over 100 of the injuries took place on similar woodworking machines, including a July 2014 incident in which a worker lost three fingers. In June, the privately held firm settled the case, agreeing to pay penalties of $1.75 million and to adopt safety measures in Arcadia and at three other plants in Wisconsin and Mississippi.

Some corporate defense lawyers say being labeled a “severe violator” is such a black eye that it strongly motivates companies to avoid trouble with OSHA. However, they criticize the program for lacking due process, because companies are labeled severe violators even as they appeal citations.

“You are dumped into SVEP essentially the day that the citations are issued and a citation is nothing more than an allegation,” said Eric J. Conn, a Washington, D.C.-based attorney who specializes in OSHA defense cases. “Having the federal agency that is responsible for safety and health branding that employer as a bad actor … absolutely has significant consequences to the employer’s business.”

In the meantime, corporate lawyers say, competitors or critics can take advantage of the situation. If residents near a listed site “don’t like your company, to begin with, this is more ammunition they can use to go to a zoning board to block permits for expansion,” said Adele Abrams, a Washington, D.C.-based attorney.

On-the-job deaths can keep companies in the program for years. DuPont was listed after four workers at its La Porte, Texas, chemical plant died of asphyxiation in 2014. The disaster occurred after a supply line released more than 20,000 pounds of deadly methyl mercaptan gas. The company, which manufactures pesticides at the Texas plant, was assessed $273,000 for eight OSHA violations. DuPont said it couldn’t comment because it is appealing its case.

AMF Bowling Centers, Inc. has been on the list since 2011, when a worker at its lanes in Addison, Texas, was fatally pulled into an automatic pin-setting machine while trying to clear a jam. OSHA had previously cited AMF in 2007 and 2008 for failing to provide proper machine guarding on pinsetters. The case was settled, with AMF agreeing to pay more than $90,000 in penalties.

Oil services giant Nabors Completion and Production Services Co. was listed following the death of welder Dustin Payne, a 28-year-old former Marine who served in Iraq and Afghanistan. He was killed in a 2014 explosion when vapors ignited inside a tank he was welding in North Dakota.

Houston-based Nabors, which boasts of operating the world’s largest land-based drilling rig fleet, was assessed $97,200 in fines and charged with a willful violation for not having thoroughly cleaned the tank of oil residue before sending Payne in.

“Dustin Payne and his fiancée should be discussing marriage and their future together. Instead, she is left stricken and trying to move forward without him,” Eric Brooks, OSHA’s area director in Bismarck, N.D., said in a news release.

International Paper Co. was added to the list last year after a 57-year-old mechanic was killed in a fire while replacing filter bags in machinery at its Ticonderoga, N.Y., plant. The bags contained combustible dust that ignited.

In assessing $211,000 in fines, OSHA said the company had failed to supply fire-resistant clothing or adequate training. The firm had previously been cited for failing to conduct annual inspections of ignitable equipment at company sites in Chicago and Newark, Ohio.

Although big companies draw the most widespread attention, the employers most commonly labeled severe violators are small construction firms with high emphasis hazards related to falls or excavation cave-ins. Yet small construction firms often elude the follow-up inspections that are supposed to be a key feature of the program.

A FairWarning analysis of the current list of 523 severe violators found that 167 had not been re-inspected, and almost all were construction firms. In many cases, the firms had shut down their worksites or went out of business before inspectors could return.

Eric Frumin, safety and health director of the union coalition Change to Win, said given the way the industry operates, OSHA can be “powerless to find and vigorously confront the worst actors.”

A trench collapse last year in New York that put a construction firm on the list also led to criminal charges. The cave-in collapse in lower Manhattan buried Carlos Moncayo, 22, under tons of dirt. His employer, Sky Materials Corp. of Maspeth, was fined $140,000 and listed for willfully failing to provide cave-in protection

Last month, Sky’s site foreman was convicted of criminally negligent homicide in the death of Moncayo, one of at least 18 New York City construction workers who died on the job in 2015. The project’s general contractor, Harco Construction LLC, was convicted of manslaughter and criminally negligent homicide in June.

Deadly incidents also have brought rail tank car cleaning companies into the program. At Nebraska Railcar, the disaster came soon after the workers returned from a lunch break and started digging out thick residue from an oil tanker. The lone survivor among the three employees working on the tanker, Joe Coschka, 36, said he was just outside the car, lowering buckets of the blacktop like material into a 55-gallon drum.

Coschka said the odor from inside the tanker was powerful, and that an air monitor was beeping. Even so, he said he assumed a supervisor who should have known better than him whether the air was a hazard, should have informed workers to evacuate the tank car immediately.

Soon Coschka heard a loud hiss, and then sparks started shooting out of the tanker. The next thing he remembers is dangling from the side of the car, still attached to his safety harness, with a fire raging inside. “And I knew Adrian was in there, and Dallas was looking pretty bad on the ground. I just knew I had to get out of there,” said Coschka. He managed to scramble to safety despite suffering back and shoulder injuries.

Coschka remains haunted by the disaster. Although he sometimes blames himself for not questioning the foreman who sent the workers into the tanker car, most of his anger is aimed at Braithwaite, the main owner of the business. He said he wishes the tougher OSHA actions had come sooner. Referring to the years of citations against Braithwaite’s companies, Coshka added: “It’s just sad because this guy dropped the ball so many times and he just keeps getting away with it.” Coschka had started at Nebraska Railcar only a month earlier.

Source: FairWarning.org – By Paul Feldman and Stuart Silverstein

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