“No Injury, No Accident”……..Right??” #Safety #NearMiss

Discover how near misses can add up to major accidents. “No Injury, No Accident?” dramatically shows employees how to recognize and prevent serious injuries or fatal accidents before they occur. Based on the pioneering work of W. H. Heinrich and his renowned “Heinrich Triangle,” the program demonstrates how the odds of a serious or fatal accident occurring emerges from a series of typical injury-fee accidents. “No Injury, No Accidents?” also shows employees the importance of reporting the accident, investigating how it happened, and eliminating the cause. It’s an essential message for every safety program.

Note: The first 23 seconds of this 18 Minute video are a little garbled.

What Are Near Misses?

Near misses happen every day in the workplace. Regardless of their potential for personal injury and property damage, all near misses should be taken seriously and consistently reported.

There are many terms which essentially mean the same thing – accident avoidance, close call, mishap or even narrow escape. It doesn’t matter exactly what terminology your business chooses to use when referring to a near miss. What matters is whether everyone understands exactly what constitutes a near miss and why it’s essential to make a record of it so it can be investigated and addressed.

Overcoming barriers to reporting

Many obstacles stand in the way of operating and utilizing an efficient and effective near-miss reporting program:

Fear of blame: Many employees are afraid to report near misses because either they don’t want to admit that they didn’t follow safety procedures or they will be mistakenly accused of doing something wrong. To create a truly effective near-miss reporting program, this stigma must be eliminated.

For near-miss reporting to work well, employers need to create a safe and comfortable atmosphere. The goal is to make employees so comfortable about the process that they report them as easily and freely as they would report a garbage can is full or a light bulb is burned out. Blame cannot be part of the equation – period.

Incoherent indifference: Another enemy of effective reporting is indifference. When a near miss occurs, some employees may question whether the situation was substantial enough to be recorded. When this happens, employees often simply disregard the event. This mindset can be lethal to a near-miss reporting program.

Hazards that are overlooked or dismissed as minor are lost opportunities for valuable insight. Employees should be trained on the importance of reporting each and every near miss. A clear definition should be provided on what constitutes a near miss, including any situation that appears to be “unsafe.” Once employees understand the importance of reporting and are clear on the definition of what defines a near miss, they will feel confident about their judgment and empowered to report.

Lack of supervisor support: Employees usually follow their direct supervisor’s instructions in most job-related situations. If a supervisor does not treat near-miss reporting as a priority, there is a good chance their personnel won’t either. Supervisors need to encourage this type of reporting and set an example by reporting near misses themselves. When employees know that their supervisors are completely on board with near-miss reporting, it is easier for them to feel comfortable to report, as well.

Near-miss reporting is a critical component of any well-organized and effective safety program. Over time, near-miss programs have been shown to save millions of dollars in medical care and equipment replacement costs. More importantly, they save lives.

Reporting near misses should not just be considered an “extra” thing or something the employee is ashamed or embarrassed to do. Instead, employees should feel proud that they are part of an effective process of prevention and incident management and thanked for their proactive safety behaviors.

 

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“Confined Spaces – Supervisor Safety Tip Series” #ConfinedSpace #Safety

Developed by Vivid’s Chief Safety Officer Jill James, a former OSHA inspector, this series examines real hazards in real work environments. This safety tip video explains ways to stay safe while working with Confined Spaces.

Confined spaces are enclosed or partially enclosed spaces of a size such that a worker can squeeze entry for performing assigned work through a narrow opening—they’re tough to get in and out of, tight spaces. These spaces are normally only entered to perform specific tasks and then barricaded to prevent unauthorized access.

As an example, think of a large tank used for holding liquid. Sometimes, these storage units or big containers need to be cleaned out, so you send a worker to get inside and they’re completely surrounded by walls of the structure, with only a small entry/exit hatch for escape if things go awry. Confined spaces create the ideal conditions for the onset of claustrophobia. Confined spaces can be large or small and above or below ground.

This video covers:

Source: Vivid Learning Systems

“Conducting An Effective Job Hazard Analysis” – Infographic” #JHA #Safety

JHA_InfographicJob hazard analysis is an essential component of a successful safety program. This BLR infographic details the 6 steps of a JHA so you can assess the hazards at your facility and implement corrective actions.

“JHA Downloads”

JHA Checklist: http://bit.ly/20crSNM

OSHA JHA Powerpoint: http://bit.ly/1K1ebiT

“Miller Fall Protection Safety Webinar” & “Fall Clearance Calculator App”

Miller Fall Protection Webinar

When working at height, it is important to know your fall clearance and swing fall, whether using a shock-absorbing lanyard or self-retracting lifeline. Calculating your fall clearance and swing fall is critical to your safety. The Miller Fall Clearance Calculator App gives workers who work at heights, the ability to quickly calculate the required fall clearance for Shock Absorbing Lanyards and Self-Retracting Lifelines, including swing fall.

Download the New Miller Fall Clearance Calculator App by Honeywell : Download link – https://itunes.apple.com/us/app/miller-fall-clearance-calculator/id971198656?mt=8

Miller Fall App

“No Injury, No Accident”……..Right??

Discover how near misses can add up to major accidents. “No Injury, No Accident?” dramatically shows employees how to recognize and prevent serious injuries or fatal accidents before they occur. Based on the pioneering work of W. H. Heinrich and his renowned “Heinrich Triangle,” the program demonstrates how the odds of a serious or fatal accident occurring emerges from a series of typical injury-fee accidents. “No Injury, No Accidents?” also shows employees the importance of reporting the accident, investigating how it happened, and eliminating the cause. It’s an essential message for every safety program.

Note: The first 23 seconds of this 18 Minute video are a little garbled.

“The Cost of Accidents & Not Reporting Near Misses”

 

Near misses happen every day in the workplace. Regardless of their potential for personal injury and property damage, all near misses should be taken seriously and consistently reported.
There are many terms which essentially mean the same thing – accident avoidance, close call, mishap or even narrow escape. It doesn’t matter exactly what terminology your business chooses to use when referring to a near miss. What matters is whether everyone understands exactly what constitutes a near miss and why it’s essential to make a record of it so it can be investigated and addressed.

Overcoming barriers to reporting

Many obstacles stand in the way of operating and utilizing an efficient and effective near-miss reporting program:

Fear of blame: Many employees are afraid to report near misses because either they don’t want to admit that they didn’t follow safety procedures or they will be mistakenly accused of doing something wrong. To create a truly effective near-miss reporting program, this stigma must be eliminated.

For near-miss reporting to work well, employers need to create a safe and comfortable atmosphere. The goal is to make employees so comfortable about the process that they report them as easily and freely as they would report a garbage can is full or a light bulb is burned out. Blame cannot be part of the equation – period.

Incoherent indifference: Another enemy of effective reporting is indifference. When a near miss occurs, some employees may question whether the situation was substantial enough to be recorded. When this happens, employees often simply disregard the event. This mindset can be lethal to a near-miss reporting program.

Hazards that are overlooked or dismissed as minor are lost opportunities for valuable insight. Employees should be trained on the importance of reporting each and every near miss. A clear definition should be provided on what constitutes a near miss, including any situation that appears to be “unsafe.” Once employees understand the importance of reporting and are clear on the definition of what defines a near miss, they will feel confident about their judgment and empowered to report.

Lack of supervisor support: Employees usually follow their direct supervisor’s instructions in most job-related situations. If a supervisor does not treat near-miss reporting as a priority, there is a good chance their personnel won’t either. Supervisors need to encourage this type of reporting and set an example by reporting near misses themselves. When employees know that their supervisors are completely on board with near-miss reporting, it is easier for them to feel comfortable to report, as well.

Near-miss reporting is a critical component of any well-organized and effective safety program. Over time, near-miss programs have been shown to save millions of dollars in medical care and equipment replacement costs. More importantly, they save lives.

Reporting near misses should not just be considered an “extra” thing or something the employee is ashamed or embarrassed to do. Instead, employees should feel proud that they are part of an effective process of prevention and incident management and thanked for their proactive safety behaviors.

Near Miss Additional Resources:

[PDF]Near Miss Reporting Systems – National Safety Council

http://www.nsc.org/…/NearMissReporting-Systems.pdf

National Safety Council

A Near Miss is an unplanned event that did not result in injury, illness, or … Near miss reporting is vitally important to preventing serious, fatal and catastrophic.

[PDF]Non-Injury and Near-Miss Incident Reporting Form – CMU
https://www.cmu.edu/…/Non-Injury%20%20NearMiss%2…
Carnegie Mellon University

Non-Injury and NearMiss Incident Reporting Form. Instructions: … http://www.cmu.edu/hr/benefits/benefit_programs/forms/WCforms.pdf. • In each of the sections …

[PDF]Near Miss Incident Information Report

http://www.scouting.org/filestore/pdf/680-017_fillable.pdf

Boy Scouts of America

Near Miss Incident Information Report. (A near miss does not result in injury, illness, or damage by definition, but it had the potential to do so.) Near miss incident …

[PDF]“near-miss” reporting – CEBC

https://cebc.ku.edu/sites/cebc.drupal.ku.edu/files/…/nearmiss.pdf

University of Kansas

accident, and reduce the consequences if the accident does occur. –Following the plan. –Reportingand learning from “near-misses”. • NearMiss reporting …

[PDF]Employee’s Report of Injury Form

https://www.osha.gov/…/3_Accident_I…

Occupational Safety and Health Administration

Instructions: Employees shall use this form to report all work related injuries, illnesses, or. “near … I am reporting a work related: ❑ Injury ❑ Illness ❑ Near miss.

[PDF]Near Miss Reporting Instructions

http://www.memphis.edu/ehs/pdfs/near_miss_report.pdf

University of Memphis

Near Miss Reporting Instructions. If you experience or witness an event that could have resulted in an injury or illness, but did not evolve to that point, you are …

[PDF]Near Miss Report

https://www.ndsu.edu/fileadmin/…/UPSO-NearMiss.pdf

North Dakota State University

Near Miss: a potential hazard or an unplanned event that did not result in an injury, illness, exposure or damage – but had the potential to do so. There was NO …

[PDF]Near Miss Reporting presentation

▫Define what is a near miss. Defined – so everyone is on the same page. ▫ Practical reporting. How do we apply this and make it work? Objective …

Accident and Near Miss Report | North Dakota Workforce Safety …

https://www.workforcesafety.com/…/acci…

North Dakota Workforce Safety & Insurance

Incident And Near Miss Procedures (Word) (PDF) Incident Report (Word) (PDF) Near Miss Report(Word) (PDF)

[PDF]HOW to INCREASE NEAR MISS REPORTING – DKF Solutions

What Are the Barriers to Reporting Near Misses? If You were asked to define what a … NEAR MISS – Near misses describe incidents where no property was damaged and no …… http://www.workforcesafety.com/safety/sops/NearMissReport.pdf .

“New Traveler’s Insurance Report – 170 Billion In Cost & 3.7 Million Workers Injured Per Year”

worker-with-head-injuryOf all public sector and private US businesses, roughly 3.7 million workers are injured per year. Businesses spend $170 billion per year on costs associated with occupational injuries and illnesses (according to OSHA) – and these findings provide critical insight on how the numbers add up.

The nature of employee injuries in the modern workplace is changing in a variety of ways. Improved workplace safety management efforts over the past 25 years have led to a decrease in the frequency of workers compensation claims. During this time, Travelers has seen an increase in the severity of those claims.1 Preventing even a single injury, or managing the injured worker’s return to work as soon as medically appropriate, can have a significant impact on the health of your workforce and on your company’s bottom line.

The Travelers Injury Impact Report, an analysis of workplace injuries based on Travelers Claim data collected between 2010-2015, identifies the most frequent injuries, those with the greatest severity and the top causes of workplace accidents, both by industry and by business size. This information can be helpful for employers to understand how to manage their exposures and tailor training programs for their workforce in their particular market and industry.

According to the Travelers Claim data, strains and sprains topped all lists for most frequent types of injuries, except for small businesses, which experienced cuts and punctures most frequently, followed by strains and sprains. Contusions, fractures and inflammation rounded out the list of the top five most frequent injuries.

Chart of Top 5 Most Frequent Injuries, by claim count

The report also explores the top five most frequent accident causes, with material handling topping the lists of most frequent causes of injury, followed by slips, trips and falls, struck by/striking against injuries, tool handling and cumulative trauma, according to claim count across all industries and all claims. “The injury type only tells part of the story,” explains Woody Dwyer, a Travelers Risk Control safety professional. “Identifying that root cause helps us determine the best strategies to help prevent future accidents and reduce their severity.”

As part of Travelers Workforce Advantage, Travelers Risk Control professionals can help businesses develop their strategies to attract, hire, onboard, train, support and engage their existing workforce. At its core, it focuses on the importance of elevating the company’s safety message, beginning with the recruiting process and continuing throughout the employee’s career at the company. The safety best practices, from safe lifting to getting adequate nightly sleep, can also offer health benefits beyond the workday for employees.

“A significant part of developing an effective risk management process involves understanding your unique workforce,” Dwyer said. This includes a shift in the state of health of the U.S. workforce, with more than half of workers experiencing at least one chronic health condition, such as heart disease, diabetes and arthritis. This can add cost and complexity to treating workplace injuries, which has led to rising medical costs for workers compensation claims.

If an employee does get injured, conducting an accident analysis can help discover the root cause of an accident, develop corrective action that can help prevent a similar accident in the future and continuously improve safety management practices.

Managing the employee’s injury so he or she returns to work as soon as medically appropriate can also help manage costs and improve employee morale. A Functional Capacity Evaluation (FCE) is one tool that can measure an employee’s current functional status and ability to meet the physical demands of a job, especially after a workplace injury.

In 2015, medical cost inflation topped the list of risk concerns for businesses, according to the Travelers Business Risk Index. Promoting the overall health and safety of your employees can help control costs while retaining an engaged workforce. Learn about how you can create a culture of safety and develop an injury management strategy at your business.

Injuries can happen at any time, anywhere, regardless of industry or business size. Knowing what those injuries are and their root causes can help companies develop workplace safety practices. To learn more about the most frequent workplace injuries, those with the greatest severity and the top causes of accidents by business size, industry and region, view The Travelers Injury Impact Report.

Source:
1 The 2014 National Council on Compensation Insurance (NCCI).

“Are You Meeting This OSHA Requirement? – “Are You Training Your Employees In A Language That They Understand?”

screenshot-www osha gov 2016-04-07 17-10-52

In order for your Environmental and Health Safety (EHS) training to be effective, you must have clear communication with trainees. This goal may be hard to achieve with workers who speak English as a second language (ESL).

However, the Occupational Safety and Health Administration (OSHA) says that an employer’s responsibility to provide employees with information and training about safety and health hazards doesn’t go away because an employee can’t understand standard English-language training programs. When that is the case, employers must inform and train these workers in a language they can understand.

“As a general matter, employers are expected to realize that if they customarily need to communicate work instructions or other workplace information to employees at a certain vocabulary level or in a language other than English, they will also need to provide training to employees in the same manner,” says OSHA.

Serious Training Violations

OSHA’s training provisions contain a variety of specific requirements to ensure that employees are comprehending instruction. For example, standards covering lockout/tagout, respiratory protection, and bloodborne pathogens each require that employers take measures to ascertain the level to which the employee has comprehended the safety provisions.

In its instructions to inspectors, OSHA states, “If a reasonable person would conclude that the employer had not conveyed the training to its employees in a manner they were capable of understanding, then the violation may be cited as serious.”

Enhancing Comprehension

Although Spanish is the most common second language spoken in the United States, there are many other languages ESL workers might speak, including:

  • Chinese
  • Arabic
  • Vietnamese and Cambodian
  • Various African languages
  • Portuguese
  • French

Take these steps to make sure your training message is understood by ESL workers.

  • Speak slowly, explain fully, and repeat important points several times.
  • Choose the simplest words and avoid technical jargon. If you must use technical terms, explain them in simple terms.
  • Use a translator if appropriate.
  • Demonstrate while you speak, and use visual aids, such as pictures and props, to supplement your words.
  • Encourage participation. Be patient and help employees express their thoughts and questions.
  • Have employees practice new skills during the training session so that you can see if they’ve understood.
  • Use feedback to confirm comprehension. Allow extra time for questions.
  • Provide handouts in the language(s) trainees speak and read.
  • Follow up on the job to make sure that employees correctly apply what they learned.
The language barrier may be only part of the problem when training ESL workers.
Cultural differences can also affect communication. In many foreign cultures, for example, older people are treated with great respect and deference, whereas in the more casual North American culture, older people might be treated with more familiarity. For example, older Hispanic workers might be offended if they are addressed by their first name, preferring to be called “Señor” or “Señora.”
Updated Guidance from OSHA

In August 2015, OSHA posted a fully updated version of its guide to all OSHA training requirements. The document, Training Requirements in OSHA Standards, organizes the training requirements into five categories: General Industry, Maritime, Construction, Agriculture, and Federal Employee Programs.

Training Resources in Spanish Language

OSHA Sources

Non-OSHA Sources

Announcements

To find outreach training in Spanish, visit the Spanish Outreach Trainers listing. If you’re an outreach trainer who conducts the training in Spanish and you want your name added to the list, send the following information to outreach@dol.gov:

  • Name
  • Construction and/or General Industry
  • Company/Organization, if applicable
  • City/state
  • Phone
  • E-mail and/or website address, if applicable

Trainer Training

Etiquetas de Seguridad Industrial PVT-165-Q Bilingual Safety Tags, Lockout Tagout, Panduit

Somos Distribuidores y manejamos todos los productos para Candadeo y Tarjeteo para Seguridad Industrial (Lockout Tagout), si usted require alguno de estos productos o require algun apoyo técnico, pongase en contacto con nosotros:

Distribuidor: INNOVATIVE TRADE CENTER, Calle Tecoripa # 2. Fracc. Sandoval La Mesa C.P. 22105 Tijuana, Baja California, Mexico.Tels: (664) 621-30-09 y (664) 621-37-36, E-mails: ventas@innovative.com.mx, soporte@innovative.com.mx, http://www.innovative.com.mx

  • Sources: OSHA & BLR

“What To Expect From OSHA In 2016 And Beyond”

image

 

OSHA’S ENFORCEMENT INITIATIVES

Though a number of OSHA’s enforcement initiatives may not technically be considered new for 2016, we can expect that OSHA will continue to increasingly issue citations under the General Duty Clause and the multi-employer worksite doctrine. We can also expect OSHA to continue to focus its attention on the training and protection provided to temporary employees, especially under OSHA’s Powered Industrial Truck (forklift) standard, Personal Protective Equipment (PPE) standards and Lockout Tagout (LOTO) regulations. OSHA has also been stepping up its workplace heat illness initiative, sending expansive subpoena requests to dozens of employers engaged in industries where employees typically are potentially exposed to heat,including manufacturing and construction, even if no injuries or illnesses have been reported. As such, it is important that employers remain aware of these issues to try to limit liability in 2016.

INCREASED OSHA PENALTIES

The new bipartisan budget, passed by both the House and the Senate and signed by President Obama on November 2, 2015, contains provisions that will raise OSHA penalties for the first time in 25 years. The budget allows for an initial penalty “catch up adjustment,” which must be in place by August 1, 2016.

The maximum initial “catch up adjustment” will be based on the difference between the October 2015 Consumer Price Index (CPI) and the October 1990 CPI. The October 2015 CPI was released on November 17, 2015, and came in at 237.838. Based on the October 1990 CPI of 133.500, the maximum catch up adjustment will be approximately 78.16% and the new maximum penalties could be:

Current

August 2016

Other than Serious violations:
$7,000

$12,471

Serious violations:
$7,000

$12,471

Willful violations:
$70,000

$126,000

Repeat violations:
$70,000

$126,000

After the initial catch up adjustment, OSHA will be required to implement annual cost of living increases, with the adjustment tied to the year over year percentage increase in the CPI. Adjustments must be made by mid-January each subsequent year.

OSHA has the option to implement a catch up adjustment less than the maximum if the Agency determines increasing penalties by the maximum amount would (1) have a “negative economic impact” or the social costs of the increase outweigh the benefits and (2) the Office of Management and Budget agrees. However, Assistant Secretary of Labor for Occupational Safety and Health Dr. David Michaels has long advocated for a substantial increase in penalties so it is difficult to envision the Agency seeking anything other than the maximum increase.

INCREASED USE OF THE GENERAL DUTY CLAUSE

Under the Occupational Safety and Health Act’s General Duty Clause, designated as section 5(a)(1), employers are required to protect employees from recognized workplace hazards that are correctible and likely to cause serious harm or death. Where OSHA lacks a specific standard to address a workplace hazard, the Agency has increasingly used the general duty clause as a “gap filler” for enforcement. OSHA thus has used the General Duty Clause to cite employers for a wide range of alleged hazards, and to enforce policies the Agency issued through guidance documents rather than formal regulations, including: ergonomics, illness due to exposure to heat and cold, arc flash/arc blast, combustible dust, chemicals and other hazardous materials for which there is no existing regulation, and fall protection.
In 2016, we expect that the Agency will use the General Duty Clause to cite employers for repetitive tasks causing ergonomic issues and musculoskeletal disorders. Moreover, in light of the increasing publicity given to the hazard because of tragic incidents involving workplace shootings, OSHA will continue its emphasis on citing employers for workplace violence incidents and violations, particularly in certain industries such as healthcare, certain retail facilities and public transportation such as taxi cabs. Employers should maintain policies and training on these issues to prevent liability and business disruptions from OSHA’s increased use of the General Duty Clause in 2016.

OSHA TO REDUCE RELIANCE ON PERMISSIBLE EXPOSURE LIMITS

In a move that could drastically affect day to day operations at a large number of employers, OSHA has signaled in a new permissible exposure limit (PEL) request for information from industry and other stakeholders that it plans to “revoke a small number of obsolete PELs.” Though the rulemaking did not list the PELs OSHA is considering revoking, the revocation of any PELs opens the door for greater use of the General Duty Clause to regulate employee exposure through standards that are not generally industry standards such as NIOSH standards or ACGIH recommended exposure limits. Several commentators believe the PEL walk back is simply OSHA’s attempt to increase employer liability for more citations while avoiding formal rulemaking to establish PELs. Combined with higher fines to be implemented by August, 2016, this could be seen as a new revenue stream for OSHA.

MULTI-EMPLOYER WORKSITE DOCTRINE

The presence of multiple employers, contractors, consultants, and temporary workers at the same workplace is increasingly common in construction, manufacturing and other industries. OSHA has taken note and made the prosecution of multiple employers at the same workplace a major Agency priority. Under OSHA’s Multi-Employer Worksite policy, more than one employer may be citable for a hazardous condition that violates an OSHA standard, so long as OSHA determines that they violated a duty under the Act. This can occur even when the employer being cited had no employees exposed to the hazard in issue. The Agency will use a two-step process to determine whether more than one employer is to be cited.

The first step is to determine whether the employer is a creating, exposing, correcting, or controlling employer. A creating employer, who caused a hazardous condition, is citable even if the only employees exposed are those of other employers at the cite. The exposing employer, whose own employees are exposed to the hazardous condition, is citable if (1) it knew of the hazardous condition or failed to exercise reasonable diligence to discover the condition, (2) it failed to take steps consistent with its authority to protect its employees. The correcting employer, who is responsible for correcting the hazardous condition, is citable if it fails to meet its obligations of correcting the condition. The controlling employer, who has supervisory authority over the worksite and the power to correct safety and health violations or require others to correct them, is citable if it fails to exercise reasonable care to prevent and detect violations on the site. In General Industry the host employer is typically the controlling employer, while in the Construction Industry it is the General Contractor, and, therefore, carry a higher compliance burden than other employers.

If OSHA determines an employer falls into one (or more) of these four categories, OSHA will then determine whether the employer met its obligations with regard to preventing and correcting the violations. It is important to note that the Multi-Employer Worksite Policy can also be utilized for criminal prosecution of employers if the underlying elements are present which require (1) a fatality, (2) violation of a specific regulation, (3) the violation was willful and (4) there is a causal connection between the violation and the death. As OSHA continues its aggressive application of the Multi-Employer Worksite Doctrine, employers should be wary as to potential liabilities for contractors, temporary workers, and other non-employees at their worksites.

FINAL IMPLEMENTATION OF NEW GLOBALLY HARMONIZED SYSTEM (GHS) STANDARDS

OSHA adopted new HCS 2012 SDS standards on December 1, 2013. Chemical end users must come into compliance with the new SDSs passed down from up-stream suppliers and manufacturers by June 1, 2016. Employers should not simply swap in a new SDS for an old MSDS and throw away the old MSDS. Previous MSDSs should be kept on file for several reasons:

to provide proof that an employer was compliant with old HazCom standard.
the prior MSDSs can be useful evidence in defending against worker’s compensation claims by employees for occupational diseases alleged to have arisen from exposure to hazardous materials during the course of employment and
the prior MSDS can be useful evidence in defending third party toxic tort claims alleged to have been caused by exposure to hazardous materials that the employer may have incorporated into products manufactured and sold by the employer or by products that are resold or distributed by the employer.
The new SDSs also presents an opportunity for employers to update their training, hazard communication, and safety procedures for chemicals. The new SDS includes sixteen separate sections, some of which are similar or identical to the existing MSDS sections. There are, however, a number of significant changes and compliance challenges.

When OSHA begins enforcement against employers on June 1, 2016, it will focus on whether the employer has reviewed the SDSs to identify any new risks as well as whether it has evaluated its existing compliance programs in light of the sixteen requirements in the new SDSs.

The Hazard Communication Standard affects nearly every employer, from chemical manufacturers to retailers to hotels whose employees work with cleaning agents. Employers need to be aware of their obligations to communicate hazards of chemical substance, and must have a process for updating existing labels, SDS, hazard assessments, and training programs to comply with HCS 2012. Here are some best practices for employers to follow:

Employers should review the new SDSs in a timely fashion upon receipt.
If the employer does not receive the SDSs in a timely fashion, it should promptly communicate in writing with the manufacturer to obtain the SDSs. If the employer does not receive the SDSs by June 1, 2016, OSHA has indicated that it will not cite employers who show “good faith efforts” to obtain the SDSs.
Employers should evaluate the workplace using the SDSs to identify hazardous chemicals and how their employees may be exposed.
Employers whose employees work with or around hazardous chemicals must ensure that they review the updated SDSs and assess each of the employer’s underlying compliance programs (e.g., emergency action plan, storage of flammable and combustible materials, PPE, respiratory protection, etc.) that may be impacted by the SDSs.
Employers should ensure that employees who work with or around hazardous chemicals are trained to recognize the pictograms and hazard warnings that will be required under the new Hazard Communication Standard. Employers should document this training and develop mechanisms to ensure that employees understand the hazards of working with or around hazardous chemicals.
TEMPORARY EMPLOYEES

In 2014, OSHA implemented an initiative to protect temporary employees under the premise that those workers are not provided the same level of training and protections as full-time employees. Under this initiative, OSHA inspectors are required to inquire during inspections whether the inspected worksite has temporary employees and determine whether those employees are exposed to hazardous conditions. Moreover, during the inspection, OSHA will also inquire as to whether the training provided to the temporary workers is in a language and vocabulary the workers can understand. If OSHA determines that the host employer failed to provide adequate training or protections to the temporary employees, OSHA could issue citations not only to the temporary staffing agency, but also the host employer under the multi-employer worksite doctrine. In order to enforce this initiative, OSHA has hired compliance officers who are bilingual (or certified interpreters) to conduct employee interviews of employees to determine if the employees understood the training. If the training were in English and the employee is not fluent in English, then the training is not “effective” and the employer can be cited. Likewise, if the training material is in writing and the employee is illiterate, the training may not be considered “effective.”

POTENTIAL RECORDKEEPING RULE CHANGES

One anticipated rule would require employers to submit their injury and illness records “regularly,” electronically instead of only when OSHA requests them through a formal request. With such disclosure, the OSHA 300 Log and supporting documents could be used to trigger OSHA inspections. In addition, the records would be made available to the public so anyone could see an employer’s injury and illness rates. This opens employers to risk of adverse public reaction if such information becomes available in the media, without understanding the context of the records and the complexity of the recordkeeping requirements so the public may erroneously construe the injury and illness rate as creating an unsafe workplace. This disclosure could also result in additional worker’s compensation litigation by attorneys who could utilize this information to file claims.

Even more concerning for employers is another anticipated rule that would make the recordkeeping requirements an “ongoing obligation.” OSHA is expected to interpret this change to allow OSHA to cite recordkeeping violations up to five years old, well past the OSH Act’s six month statute of limitations. This is in direct contradiction to well established case law, including a 2012 D.C. Circuit decision affirming the six month limit.1 There is hope, however, through a recent Eighth Circuit Court of Appeals2 case that prevents OSHA from reinterpreting a rule in such a way that is “plainly erroneous or inconsistent with the regulation.” This will be an area to which employers should pay close attention.

NEW SILICA RULE EXPECTED TO BE RELEASED BY JANUARY 2017

Crystalline silica particles are commonly dispersed in the air when workers cut, grind, crush, or drill silica-containing materials such as concrete, masonry, tile, and rock. OSHA estimates that 2.2 million American workers are regularly exposed to respirable silica, with 1.85 million of those workers in the construction industry. Other common sources of exposure are building products manufacturing, sandblasting and hydraulic fracturing (fracking) of oil and gas wells. Crystalline silica exposure can cause lung cancer, chronic obstructive pulmonary disease, and silicosis, an incurable and sometimes fatal lung disease.

OSHA has outlined a new Silica Rule as a top priority since the beginning of the Obama administration. The Agency sent a draft rule to the White House Office of Management and Budget (OMB) in February 2011, and has pledged to release a final rule by January 2017. (See the notice of proposed rulemaking at https://federalregister.gov/a/2013-20997).

OSHA’s Silica Rule that will establish permissible silica exposure limits for all workers at 50 micrograms per cubic meter of air, cutting allowable exposures in half in general industry and maritime businesses, and even more in construction. The proposed rule also includes preferred methods for controlling exposure — such as using water saws to reduce airborne silica dust. The rule will also require that employers conduct periodic air monitoring, limit workers’ access to areas where exposures are high, enforce effective methods for reducing exposures, provide medical exams for workers who have been exposed to elevated levels of silica, and require training for workers about silica-related hazards.

ENHANCED CRIMINAL LIABILITY

OSHA has had the ability to seek criminal liability against employers and managers since the advent of the law if a willful violation of a regulation causes the death of an employee, although a conviction is a misdemeanor with a six month period of imprisonment and a $500,000 penalty for the employer and $250,000 for an individual.

This seemingly minimal criminal liability has now given rise to a recent criminal enforcement agenda announced by the Department of Justice on December 17, 2015, to seek additional liability against employers when there is a workplace safety violation having nothing to do with a fatality. The DOJ will seek criminal penalties under other criminal laws for lying during an OSHA inspection, making false statements in government documents, obstructing justice and tampering with witnesses which are felonies and can result in imprisonment ranging from 5 to 20 years and enhanced monetary penalties.

With the advent of this criminal prosecution initiative, employers must be extremely careful during OSHA inspections, particularly in the aftermath of a fatality or serious injury, not to engage in any conduct that remotely approaches lying during an inspection, obstruction of justice, tampering with witnesses and must engage knowledgeable counsel at the outset to be able to understand and avoid these liabilities.

OSHA’S USE OF THE RAPID RESPONSE FORM

On January 1, 2015, OSHA’s more robust reporting rules took effect, requiring employers to report all work-related in-patient hospitalizations, amputations, and losses of an eye within 24 hours of the event:

Within eight (8) hours after the death of any employee as a result of a work-related incident (which includes heart attacks);” and
Within twenty-four (24) hours after the in-patient hospitalization of one or more employees or the occurrence of an injury to an employee involving an amputation or loss of an eye, as a result of a work-related incident.”
To streamline these reports, OSHA adopted new procedures: the Interim Enforcement Procedures for New Reporting Requirements. Under these Interim Enforcement Procedures, OSHA triages new reports to determine whether the report warrants an inspection or a “Rapid Response Investigation” (RRI). “Category 1” reports — including fatalities, multiple hospitalizations, repeat offenders, and imminent dangers — will automatically trigger an on-site inspection. “Category 2” reports may trigger an on-site inspection if they involved two of the following factors: continued exposures, safety program failure, serious hazards, temporary workers, referrals from other agencies, and pending whistleblower complaints. If Category 2 factors are not present, the Agency may initiate a Rapid Response Investigation in lieu of an inspection.

OSHA may initiate a Rapid Response Investigation where the Area Director believes that there is a “reasonable basis that a violation or hazard exists.” The Agency will direct employers to “find out what led to the incident and what modifications can you make now to prevent future injuries to other workers.” The Agency will fax a letter instructing employers to “immediately conduct your own investigation into the reported incident and make any necessary changes to avoid further incidents,” and complete a “Non-Mandatory Incident Investigation” form (attached to the letter). The employer’s report and investigation will be used by the Agency to determine whether to conduct its own inspection. A word of caution, these rapid response forms could be used against employers as admissions of liability for a violation of a regulation as well as grounds for OSHA to find a “willful” violation if the employer responds in a way that it appears to admit prior knowledge of the hazard which could be an “admission” of liability. Accordingly, as rapid response forms are increasingly used in 2016, employers should write only limited, careful responses and avoid any language that might support an admission. Employers must preserve attorney client privilege in the conduct of their underlying root cause analysis investigation and disclosures on the forms, and seek the advice of counsel where necessary.

HOW TO DEAL WITH AN AGING WORKFORCE

According to the U.S. Bureau of Labor Statistics, one in every five American workers is over 65, and in 2020, one in four American workers will be over 55. Though the overall effects of an aging workplace are not entirely clear, there are several precautions employers should take to protect aging employees:

Workstations and job tasks must be matched to the needs of the individual employee.
Older workers tend to have fewer accidents but when they do have accidents, the injuries tend to be more severe resulting in a longer recovery time.
Older workers tend to experience more back injuries.
Older workers are more likely to develop musculoskeletal injuries because they have been performing repetitive motions for a longer period of time.
Muscular strength and range of joint movement may decrease.
Vision and hearing challenges may be more prevalent in older workers.
OSHA has begun to analyze the potential hazards associated with these employees and will likely propose guidance.

MIDNIGHT REGULATIONS AND INTERPRETATIONS

As with any outgoing administration, there is always the potential for “midnight regulations,” often implemented through rulemaking in the waning days of an Administration, particularly after an election. Though President Obama will not leave office until January 20, 2017, employers should prepare for last minute regulations or potential “executive orders” that may have lasting effects on employers. For example, under the Clinton administration, OSHA issued an ergonomics rule shortly after the 2000 election and Congress was forced to repeal the rule shortly after President Bush took office in January 2001. The likelihood of midnight regulation under President Obama depends heavily on which party wins the presidency in November 2016. To avoid potential political fallout for a new administration, OSHA will likely implement any new regulations as early as possible in 2016.

Midnight regulations are not the only potential consequence of an outgoing administration. New last minute interpretations of existing regulations and guidance could also have a significant impact on employers. While the Eighth Circuit’s ruling in Loren Cook Company, discussed above, may lessen the likelihood of drastic reinterpretations of rules, employers should still be on the lookout for changes in interpretation and implementation that may affect how companies do business.

CONCLUSION

The first seven years of the current Administration have been very challenging for employers under OSHA and other employment laws. 2016 may be the most challenging as the current Administration wants to project its agenda in the waning days of its authority. The President has said that in his last year he intends to “leave it all on the field” as to his agendas which means that employers must continue to be vigilant, keep informed and respond properly.

Source: Seyfarth, Shaw, LLC

http://www.environmentalsafetyupdate.com

 

 

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