“Safety Photo of the Day” – “Who Should Be Tied Off In This Photo?”

Who Should Be Wearing Fall Protection &  Tied Off In This Photo?

wrigley-reno

OSHA issued a letter of interpretation that addresses the requirements for use of a body-restraint system on aerial lifts (body restraint is required) versus scissor-lifts (body restraint not required as long as standard guardrails are in place). One last thing about scissor-lifts to keep in mind; in some cases, the manufacturer of a scissor-lift may install a tie-off point(s) in the work platform. In those cases, you should consult their instructions for recommendations as to when it might be necessary to tie-off while using their equipment.
Why is fall protection important?

Falls are among the most common causes of serious work related injuries and deaths. Employers must set up the work place to prevent employees from falling off of overhead platforms, elevated work stations or into holes in the floor and walls.

What can be done to reduce falls?

Employers must set up the work place to prevent employees from falling off of overhead platforms, elevated work stations or into holes in the floor and walls. OSHA requires that fall protection be provided at elevations of four feet in general industry workplaces, five feet in shipyards, six feet in the construction industry and eight feet in longshoring operations. In addition, OSHA requires that fall protection be provided when working over dangerous equipment and machinery, regardless of the fall distance.

To prevent employees from being injured from falls, employers must:

  • Guard every floor hole into which a worker can accidentally walk (using a railing and toe-board or a floor hole cover).
  • Provide a guard rail and toe-board around every elevated open sided platform, floor or runway.
  • Regardless of height, if a worker can fall into or onto dangerous machines or equipment (such as a vat of acid or a conveyor belt) employers must provide guardrails and toe-boards to prevent workers from falling and getting injured.
  • Other means of fall protection that may be required on certain jobs include safety harness and line, safety nets, stair railings and hand rails.

OSHA requires employers to:

  • Provide working conditions that are free of known dangers.
  • Keep floors in work areas in a clean and, so far as possible, a dry condition.
  • Select and provide required personal protective equipment at no cost to workers.
  • Train workers about job hazards in a language that they can understand.
Additional Fall Protection Resources

“OSHA Says “Negative” To Post-Accident Testing”

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By John Hyman

Buried in OSHA’s impending final rule on electronic reporting of workplace injuries and illnesses is this little nugget. OSHA believes that you violate the law if you require an employee to take a post-accident drug test. Let me repeat. According to OSHA, you violate the law if you automatically drug test any employee after an on-the-job accident.

Allow me to pause while this sinks in.

While this prohibition doesn’t appear in the the actual text of the final rule, it does prominently appear in OSHA’s interpretation of the provision which prohibits employers from retaliating against employees who reporting a work-related injury or illness:

“OSHA believes the evidence in the rulemaking record shows that blanket post-injury drug testing policies deter proper reporting.… [T]his final rule does not ban drug testing of employees. However, the final rule does prohibit employers from using drug testing (or the threat of drug testing) as a form of adverse action against employees who report injuries or illnesses. To strike the appropriate balance here, drug testing policies should limit post-incident testing to situations in which employee drug use is likely to have contributed to the incident, and for which the drug test can accurately identify impairment caused by drug use.… Employers need not specifically suspect drug use before testing, but there should be a reasonable possibility that drug use by the reporting employee was a contributing factor to the reported injury or illness in order for an employer to require drug testing.”

“What about workers’ compensation laws,” you say? “State law requires post-accident testing. What gives?” OSHA hears your cries, and has an answer for you:

A few commenters also raised the concern that the final rule will conflict with drug testing requirements contained in workers’ compensation laws. This concern is unwarranted. 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 the final rule would not prohibit such testing. This is doubly true because Section 4(b)(4) of the Act prohibits OSHA from superseding or affecting workers’ compensation laws.

Make no mistake, this interpretation is huge for employers. As a result of this new reporting standard, employer policies that require post-accident drug testing will face scrutiny by OSHA, and OSHA will cite you for any policy that mandates post-accident testing without consideration of the specific facts and circumstances of the injury. Further, OSHA will deem retaliatory any employer discipline for a failed or refused post-accident test unless the drug use is likely to have contributed to the accident and for which the test can accurately identify pre-accident drug-related impairment. That’s a high bar for employers to clear.

This rule was to take effect on August 10, but OSHA has stated that it is delaying enforcement until November 1. If you have a drug testing policy or otherwise engage post-accident testing in your workplace, now is the time to review your policies and practices with your employment counsel. This issue is very much on OSHA’s radar, which means it must be on your radar also.

Source: Ohio OSHA Law Blog

About the author of this post:

Jon Hyman

Jon Hyman is a partner in the Labor & Employment group of Meyers Roman Friedberg & Lewis. For more information, contact Jon at (216) 831-0042, ext. 140 or jhyman@meyersroman.com.

A bit of clarity from the OSHA Interpretation link above:

Some commenters stated their belief that drug testing of employees is important for a safe workplace; some expressed concern that OSHA planned a wholesale ban on drug testing (Exs. 1667, 1674). To the contrary, this final rule does not ban drug testing of employees. However, the final rule does prohibit employers from using drug testing (or the threat of drug testing) as a form of adverse action against employees who report injuries or illnesses. To strike the appropriate balance here, drug testing policies should limit post-incident testing to situations in which employee drug use is likely to have contributed to the incident, and for which the drug test can accurately identify impairment caused by drug use.

For example, it would likely not be reasonable to drug-test an employee who reports a bee sting, a repetitive strain injury, or an injury caused by a lack of machine guarding or a machine or tool malfunction. Such a policy is likely only to deter reporting without contributing to the employer’s understanding of why the injury occurred, or in any other way contributing to workplace safety. Employers need not specifically suspect drug use before testing, but there should be a reasonable possibility that drug use by the reporting employee was a contributing factor to the reported injury or illness in order for an employer to require drug testing. In addition, drug testing that is designed in a way that may be perceived as punitive or embarrassing to the employee is likely to deter injury reporting.

A few commenters also raised the concern that the final rule will conflict with drug testing requirements contained in workers’ compensation laws. This concern is unwarranted. 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 the final rule would not prohibit such testing. This is doubly true because Section 4(b)(4) of the Act prohibits OSHA from superseding or affecting workers’ compensation laws. 29 U.S.C. 653(b)

Update 8/2/2016

Court Case Filed in Texas in July for an:

EMERGENCY MOTION FOR PRELIMINARY INJUNCTION AND REQUEST FOR EXPEDITED BRIEFING SCHEDULE AND HEARING –

A downloadable copy of motion in PDF format can be found at: http://bit.ly/2azdxZK

“Fall Protection: Working On Tops Of Trucks & Rolling Stock……Which Rule Do I Follow?…. OSHA? DOT? “

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The Occupational Safety and Health Administration (OSHA) wants more control over trucking, and the latest focus is on fall protection. Tank fleets, in particular, are being targeted in the current OSHA initiative.

The agency is seeking comments from industry on whether or not it should develop specific regulations to “cover falls from rolling stock and commercial motor vehicles.” The May 24 notice of proposed rulemaking (NPRM) defines motor vehicle to include “tractor-trailer trucks, tank trucks and hopper trucks.” A regulation would cover any employee working more than four feet off the ground.

The agency is seeking comments from industry on whether or not it should develop specific regulations to “cover falls from rolling stock and commercial motor vehicles.” The May 24 notice of proposed rulemaking (NPRM) defines motor vehicle to include “tractor-trailer trucks, tank trucks and hopper trucks.” A regulation would cover any employee working more than four feet off the ground.

This is a proposal that we have to take seriously,” says John Conley, president of National Tank Truck Carriers (NTTC). “OSHA really wants to get more involved in the trucking industry. I just hope that DOT (the Department of Transportation) will object to this intrusion into what is, and should be, its turf. Transportation vehicles present a unique workplace and not one to which OSHA can just apply its standards from other stationary facilities. NTTC will submit comments — which are due August 23 — reflecting the views and concerns of our members.”

Conley says OSHA is taking an unusual approach to the fall protection issue. Rather than propose new regulations for commercial vehicles in the 292-page rulemaking, which contains many significant changes to 29CFR Part 1910, it is asking for information on whether there is “a need to propose specific requirements for the protection of employees exposed to falls from rolling stock and motor vehicles.” The agency states in its rulemaking that “If, in response to this issue, OSHA receives sufficient comments and evidence to warrant additional rulemaking, a separate proposed rule will be issued.”

There always has been a bit of a gray area regarding what regulatory authority, if any, OSHA has over trucking equipment, according to Conley. Since its inception, OSHA has tried to get its nose under the trucking tent and into the cab and onto the trailer. OSHA and DOT signed a memorandum of understanding in the 1970s where each agency agreed to not regulate where the other had established jurisdiction. DOT has maintained that it regulates truck equipment but has never addressed fall protection and trailers. OSHA’s directive to its field staff is still to not “cite employee exposure to fall hazards on the tops of rolling stock unless the rolling stock was positioned inside or contiguous to a building where the installation of fall protection is feasible.”

“Make no mistake that OSHA would very much like to propose a regulation on fall protection in this proposed rulemaking, but must have felt it would be challenged as to whether it was the responsible regulatory agency,” Conley says. “The effort to ask questions to determine if such a regulation needs to be written should be viewed as an effort by OSHA to either exercise that authority or to pressure DOT to do so. Remember, OSHA is much emboldened in the Obama Administration, and a power grab makes bureaucratic turf sense.

“Please keep in mind that if you conduct operations in mining facilities or locations that are governed by the National Institute of Occupational Health and Safety (NIOSH), that agency does not have a similar agreement with DOT and does require fall protection equipment for employees who go on top of trailers. Also, the OSHA proposal and request for information does not apply to railroad cars since the Federal Railroad Administration already has jurisdiction over that equipment.”

The Cargo Tank Risk Management Committee (CTRMC) also argues that OSHA has no legitimate reason for wresting control over motor vehicles — specifically cargo tanks — from DOT. The tank truck industry and DOT have done a good job of managing fall hazards on motor vehicles over the years.

“Our data and evidence suggest the frequency of injuries sustained in a fall from a transportation tank is extremely low,” says John Cannon, secretary of CTRMC and vice-president of engineering at Walker Group Holdings. “A typical large cargo tank motor vehicle fleet makes over 300 deliveries per day and has averaged less than two falls from its tank trailers per year. Most of the falls were from the ladder, not the tank top.”

He adds that the effective improvement of worker safety from fall-related injuries on transportation tanks is a complex challenge, requiring the participation of many industry stakeholders. The CTRMC was formed for that very purpose. The group held its first meeting in March, and the next one is scheduled for September.

“We’re taking a proactive approach to fall protection on transport equipment, and we are getting outstanding participation from the fleets, shippers, and equipment manufacturers that are part of CTRMC,” Cannon says. “We believe the best solutions come from those that are closest to an issue. The tank truck industry has many small businesses with fragile economic models. We need to ensure that improvements related to workers on transportation tanks are financially feasible.”

Tank truck fleets do provide fall protection training for truck drivers. Training typically includes fall hazard recognition and company-specific policies to reduce the potential for falls. Trucking companies with the most aggressive training programs cover falls during the initial orientation, recurrent training, periodic safety communications, and remedial training.

Drivers are protected from fall hazards in a variety of ways. Loading racks at shipper facilities have fixed railings. Fall arrest systems (harnesses and retractable lanyards) can be installed at the loading rack or on the transport tank. Some transport tanks have side walkways, handrails, and outer railings. Some transport tanks are built with systems (like bottom loading) that remove any need for the driver to climb on top of the tank.

The battle goes on. The only OSHA rule in place is the 1996 Rolling Stock rule and the GDC.

If it were me, I’d use the following document as guidance: http://resources.xlgroup.com/docs/xlenvironmental/library/risk_consulting/5241_Vehicle_Fall_Protection.pdf

PDF Source: XL Insurance

 

 

“OSHA Quietly Changes The Group Of Small Businesses Exempt From Inspection – Epstein, Becker, Green”

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By: Valerie Butera

In a recently updated directive to Regional Administrators and State Plan Designees from Dr. David Michaels, Assistant Secretary of Labor for OSHA, the categories of small businesses exempt from programmed health and safety inspections changed.

This exemption applies to workplaces with 10 or fewer workers who perform work in industries OSHA deems low hazard. OSHA identifies low hazard industries by studying the most recent results of mandatory surveys sent to employers in countless industries by the Bureau of Labor Statistics which collect information about how often employees were unable to perform their normal job duties because of workplace injuries or illnesses. Those industries with the lowest numbers are included in the list.

The change to the list became effective on January 29, 2016, and will remain in effect until updated, which typically happens at the beginning of each year.

Newly Exempt Industries

There are over 400 industries included in the list of exempt small businesses. Among the industries newly exempt from inspections are:

Electrical contractors and wiring installation contractors
Soybean and other oilseed processing
Inorganic chemical manufacturing
A number of retail industries including boat dealers, motorcycle dealers, floor covering stores, electronics stores, meat markets, fish and seafood markets, tobacco stores and vending machines
Farm product warehousing and storing
Residential and Nonresidential property managers
Marinas
Full-service restaurants, cafeterias, buffets and snack bars
Industries No Longer Exempt

Many of the industries deemed exempt in the last revision of this list no longer enjoy an exemption from inspections. A sampling of the industries no longer included in the list includes:

Heavy and civil engineering construction

See the rest of the story here: http://www.oshalawupdate.com/2016/02/25/osha-quietly-changes-the-group-of-small-businesses-exempt-from-inspections/

Source: OSHA Law Update – Epstein, Becker, Green

“What To Expect From OSHA In 2016 And Beyond”

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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

 

 

“OSHA – EMT’s At Amazon Fulfillment Center Are Not “Licensed Health Care Professionals”

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Jeff Bezo, President and CEO of Amazon, was sent a letter by the U.S. Department of Labor -OSHA on January 6, 2016, warning him to stop using AMCARE, their in-plant medical unit which is staffed with EMTs to provide medical care. EMTs are only supposed to provide first aid, nothing more.

In the letter the OSHA  states “After reviewing relevant facts pertaining to this case, it has been determined the AMCARE is providing medical care beyond first aid at the Robbinsville, New Jersey Amazon Fullfillment Center .” The letter goes on to specify that EMTs are not licensed to practice medical care independently as per the state laws. “AMCARE personnel were providing medical care beyond what is allowed by their licensing and certification without the supervision of a board certified qualified medical professional licensed to practice independently.”

EMTs are only allowed to provide first aid as well as provide referrals to an outside health care providers when necessary.

You can read the OSHA letter to Amazon here: https://www.osha.gov/ooc/citations/Amazon_1074833_HAL.pdf

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