OSHA watch

Limited extension of the compliance dates for Beryllium Standard

A proposed rule to extend the compliance date for “certain ancillary requirements of the general industry beryllium standard” from March 12 to Dec. 12, 2018 was published in the federal registrar.

However, the proposed extension does not delay enforcement for the following requirements in general industry:

  • Permissible exposure limits (PELS)
  • Exposure assessment
  • Respiratory protection
  • Medical surveillance
  • Medical removal protection provisions
  • Any provisions where the compliance dates in the standard take effect in 2019 and 2020

For the construction and shipyard industries, only the permissible exposure limits and short-term exposure limit are being enforced until there is additional rulemaking.

 

New fact sheet outlines whistleblower protections for workers in nuclear industry

A new “Whistleblower Protection for Nuclear Industry Workers” fact sheet outlines retaliation protection for certain employees who report potential violations of the Energy Reorganization Act or the Atomic Energy Act.

 

New webpage provides safety information on workplace chemicals

The new Occupational Chemical Database compiles information from several government agencies and organizations into one online resource. The webpage includes chemical identification and physical properties, permissible exposure limits (PELs), and sampling information. Chemicals can be searched by name or identification number, or grouped by PEL, carcinogenic level, or whether they pose an immediate threat when inhaled.

 

MIOSHA targets blight removal projects to protect workers from asbestos and other hazards

The Michigan Occupational Safety and Health Administration (MIOSHA) relaunched its state emphasis program (SEP) that increases MIOSHA presence on blight removal projects across the state to address hazards such as asbestos and lead. The SEP will be in effect through February 28, 2019.

 

Enforcement notes

California

  • California OSHA issued six citations and $48,095 in penalties to Tobin Steel Company, Inc., after a worker sustained serious injuries while operating an unguarded press brake machine. Citations include failure to: conduct and document required inspections, test and maintain power-operated presses, train workers on amputation hazards, and provide adequate machine guarding.

Florida

  • Crown Roofing LLC, based in Sarasota, faces $149,662 in proposed fines for exposing employees to fall hazards at a Jupiter worksite.
  • Inspected as part of the National Emphasis Program on Trenching and Excavation, Douglas N. Higgins Inc., a South Florida utility contractor, faces $18,659 in proposed penalties for exposing employees to cave-in and other hazards at a Naples worksite. The agency previously cited the contractor for violations in January 2017 when three employees succumbed to toxic gases while working in a manhole and again in May 2018 after a steel plate fell on and fatally injured an employee.

Georgia

  • An administrative law judge of the OSHRC reinstated a citation and a $7,000 fine against an electrical services company, Smyrna-based Action Electric Co. Inc., after a federal appellate court reversed another judge’s decision to vacate the citation. The judge noted, “An Action Electric employee died from the failure of Action Electric to properly implement (lockout/tagout) procedures for inspection of the cooling machine and counterweight components.”
  • An administrative law judge of the OSHRC affirmed Gainesville-based Prime Pak Foods Inc. safety fines and approved the Secretary of Labor’s request to dismiss the company’s contest notice because it was filed after the 15-day deadline to do so. Prime Pak “argues its neglect is excusable because it was denied advance notice of the citation and the right to have counsel served with the citation,” noted the ruling, which emphasizes that notices are sent “to employers,” per federal legislation.

Maine

  • After multiple investigations and citations, a Maine roofing contractor operating as Lessard Roofing & Siding Inc. and Lessard Brothers Construction Inc. was ordered by the U.S. Court of Appeals for the 1st Circuit to implement a comprehensive safety and training program after receiving repeated citations for exposing workers to falls. The owner, Stephen Lessard, was also ordered to produce substantial documentation that will demonstrate the extent to which he is able to pay $389,685 in outstanding fines.

Michigan

  • An OSHRC administrative law judge vacated a defense contractor’s safety citation and proposed fine after determining officials could not prove negligence in a case involving a stack of heavy boxes containing vehicle parts that fell on a worker. A warehouse employee of Sterling Heights-based General Dynamics Land Systems Inc. was seriously injured when seven crates containing 94-pound struts fell on him from a stack as he was inventorying them.

Minnesota

  • Minnesota OSHA issued eight citations and $366,150 in penalties to Gateway Building Systems, Inc., after a worker suffered a fatal fall from a grain elevator. Inspectors determined that the company failed to: ensure workers were using correct anchorage points, install proper decking and guarding over an expanded platform, and provide overhead protection for workers.

Wisconsin

  • Appleton roofing contractor Hector Hernandez was cited again after inspectors observed employees exposed to falls and other safety hazards at two Wisconsin job sites. Proposed penalties are $120,320.

For more information.

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HR Tip: NLRB General Counsel issues guidance on employer handbook rules

On June 6, 2018, the National Labor Relations Board General (NLRB) Counsel issued GC Memorandum 18-04, Guidance on Handbook Rules Post-Boeing. The guidance groups the rules into three categories: Category 1 rules are generally lawful, Category 2 rules require an evaluation of the rule on a case-by-case basis using the Boeing standard, and Category 3 rules are unlawful to maintain.

Category 1

During the Obama period, the NLRB was very strict in interpreting employee handbook policies for union and non-union employers. Many rules that would have been scrutinized by the Board are now generally lawful, including:

  • Civility rules. “Behavior that is rude, condescending or otherwise socially unacceptable is prohibited” is an example of a lawful civility rule.
  • No-photography rules and no-recording rules. Rules that ban employees from taking photos, videos, or recorded conversations at work are lawful.
  • Rules against insubordination, non-cooperation, or on-the-job conduct that adversely affects operations. “Being uncooperative with supervisors . . . or otherwise engaging in conduct that does not support the Employer’s goals and objectives is prohibited” is an example of a lawful insubordination rule.
  • Disruptive behavior rules. Disorderly conduct or other bad behavior that disrupts business operations can be prohibited.
  • Rules protecting confidential, proprietary, and customer information or documents. Rules banning the discussion of confidential, proprietary, or customer information are generally lawful. Note: this would not extend to the discussion of employee or wage information.
  • Rules against defamation or misrepresentation. “Misrepresenting the company’s products or services or its employees is prohibited” is a lawful rule.
  • Rules against using employer logos or intellectual property. “Employees are forbidden from using the Company’s logos for any reason” is an example of a lawful rule.
  • Rules requiring authorization to speak for company. A handbook rule requiring authorization to speak for the company or requiring that only certain persons speak for the company is generally lawful.
  • Rules banning disloyalty, nepotism, or self-enrichment. “Employees may not engage in conduct that is disloyal . . . competitive or damaging to the company such as illegal acts in restraint of trade or employment with another employer” is an example of a lawful rule.

Category 2

These rules require individualized scrutiny under the Board’s Boeing framework:

  • Broad conflict-of-interest rules that do not specifically target fraud and self-enrichment and do not restrict membership in, or voting for, a union.
  • Confidentiality rules that encompass “employer business” or “employee information.”
  • Rules prohibiting disparagement of the employer (as opposed to coworkers).
  • Rules prohibiting or regulating use of the employer’s name (as opposed to the employer’s logo/trademark).
  • Rules restricting employees from speaking to the media generally (as opposed to on the employer’s behalf).
  • Rules banning off-duty conduct that would harm the employer (as opposed to insubordinate/disruptive behavior at work).
  • Rules against making false or inaccurate statements (as opposed to rules against making defamatory statements).

Category 3

These rules are specifically banned:

  • Confidentiality rules regarding wages, benefits, or working conditions.
  • Rules that prohibit joining outside organizations or that require employees to refrain from voting on matters concerning the employee.

As a best practice, employers should always seek legal counsel when revising its employee handbook.

For Cutting-Edge Strategies on Managing Risks and Slashing Insurance Costs visit www.StopBeingFrustrated.com

OSHA update: Silica

The respirable crystalline silica in general industry and maritime standard went into effect June 23, 2018. Its provisions establish a new 8-hour time-weighted average permissible exposure limit, action level and associated ancillary requirements. Under the new standard, the PEL now limits worker exposures to 50 micrograms of respirable crystalline silica per cubic meter of air, averaged over an eight-hour day.

While a compliance directive on the standard has not been finalized, OSHA has released initial enforcement guidelines and during the first 30 days of enforcement will offer compliance assistance for employers who make a good faith effort to comply with the new standard. OSHA also released a fact sheet on the regulation in February. OSHA’s Small Entity Compliance Guide for the Respirable Crystalline Silica Standard for General Industry and Maritime discusses methods of compliance, such as using engineering and work practice controls, assessing exposure levels, respirator use, medical surveillance, and written exposure plans.

Insights from the first six months of enforcement

Enforcement actions taken in the construction industry, where the standard has been in effect since Oct. 23, 2017, can be a helpful guide to other industries. OSHA estimates that 2.3 million workers are exposed to silica when they are at work and businesses and materials impacted include dental laboratories, railroads, paintings and coatings, hydraulic fracturing for gas and oil, asphalt products manufacturing, jewelry production, refractory products, landscaping, ready-mix concrete, and cut stone and stone products.

According to an article, “What the First Six Months of Silica Enforcement Tells Us” in EHS Today, as of April 23, 2018, OSHA and State Plans that have adopted the silica rule have issued 117 violations, 80% of which are classified as “serious.” The most common violations of the silica standard cited are:

  • 35 cited violations of 29 C.F.R. § 1926.1153(d)(2)(i) for failure to conduct an exposure assessment of worker exposure to respirable crystalline. If an inspector finds an employer has not done an exposure assessment, then one can expect a citation.
  • 31 cited violations of 29 C.F.R. § 1926.1153(c)(1) for failing to adhere to the Table 1 list of equipment/tasks and OSHA’s required engineering and work control methods and respiratory protection. Attorney John F. Martin of the law firm Ogletree Deakins notes that this is surprising because these requirements are not mandatory. He points out that if a construction employer opts not to follow the controls and respiratory protections for the listed equipment and tasks, then it is required to follow the alternative exposure control methods cited, including conducting an exposure assessment.
  • 20 cited violations of 29 C.F.R. § 1926.1153(g)(1) for lack of a written exposure control plan. This includes employers who do not have a written plan at all and others whose plans are not in compliance. The control plans must include four minimum elements describing workplace tasks that involve exposure to silica: engineering controls, work practices and respiratory protection used to limit employee exposure to silica for each task, housekeeping measures used to limit exposure to silica, and procedures used to restrict access to work areas to minimize the number of employees exposed to silica.

For Cutting-Edge Strategies on Managing Risks and Slashing Insurance Costs visit www.StopBeingFrustrated.com

Fatigue: a hidden workplace risk

Americans are known as a 24/7 society and often take pride in their sleep deprivation. Although some workers experience fatigue at work because of their lifestyle, the workplace is the root of fatigue for many workers. And, according to a study by the National Safety Council (NSC), 74% of employers underestimate the prevalence of fatigue in the workplace and 73% do not communicate with employees about fatigue.

Overtime, high risk hours (night or early morning), demanding jobs that require sustained attention physically and/or mentally, long shifts, quick shift returns, and no rest breaks are among the top fatigue risk factors identified by the NSC. The common argument made by employers is that productivity will be reduced if steps are taken to address fatigue. And the current employee shortage in many areas has exacerbated the problem.

Yet, as the work schedule progresses, workers tire naturally as they use up energy. Too few breaks and long shifts add to the strain on body and mind, leading to reduced alertness and lack of concentration. But employees are reluctant to say they are too tired to do their job safely for fear of being perceived as lazy, uncooperative, or losing needed overtime pay.

The result is not only a decline in productivity, but also increased accidents and near-misses. According to the NSC, 32% of reported injuries and near-misses are due to fatigued employees. Workplace fatigue problems can be cured, but the hurdle is recognizing the correlation between incidents and fatigue and developing solutions that are compatible with productivity objectives.

While each employer’s situation is unique, here are some considerations:

  • Analyze the workload and staffing imbalances that necessitate excessive overtime. Look at options such as reengineering processes to reduce staff hours and cross training employees
  • Rotate shift schedules to ensure no one is always on the night shift. Rotating shifts is a best practice that entails scheduling a worker for the night shift for two weeks and then giving them time off and then scheduling for day shifts for two weeks
  • Implement the 12-hour rule: make sure employees have 12 hours off between shifts
  • Control the boredom factor by varying tasks. Employees doing monotonous work and tasks are more susceptible to fatigue
  • Provide a designated area for employees to rest. A 15-30-minute power nap when working long shifts can be a great refresher
  • Educate workers on the symptoms of fatigue, the impact of shift work on sleep-wake cycles and the best ways to manage it. Provide resources to deal with sleep disorders
  • Let employees know they share responsibility with the company for preventing fatigue and, given adequate time away from work, they are responsible for getting enough sleep
  • Use ergonomic equipment designed to reduce physical strains
  • Provide plenty of water, healthy snacks
  • Evaluate the lighting and temperature in the workplace as well as other environmental issues that can produce fatigue. Minimize humidity, noise, vibration
  • Monitor fatigue. Research technology that fits your industry
  • Have a risk management system, including reporting of fatigue-related incidents, investigation, training and auditing

Rather than adopting the attitude “that’s just the way things have to be to get the work done” understanding how the workplace is set up, how the work is handled, and how fatigue is a serious, costly risk can guide employers to develop a plan that mitigates risks and maintains productivity levels.

For Cutting-Edge Strategies on Managing Risks and Slashing Insurance Costs visit www.StopBeingFrustrated.com

Studies: Getting a handle on two comp cost drivers: motor vehicle accidents and claim denials

Limiting motor vehicle accident costs

In its 2018 Driver Safety Risk Report, Motus, a Boston-based vehicle management and reimbursement platform, estimates that about 40 percent of vehicle accidents are work-related, while 53 percent of vehicle crash injuries cause employees to miss work, costing employers $56.7 billion in 2017. The costs include medical care, property damage, legal expenses, lost wages, increased insurance, and lost productivity. When an employee has an on-the-job crash that results in an injury, the average cost is $74,000 to the employer.

While the figures are daunting, the company offers these solutions for reducing collision rates by as much as 35%:

  1. Expand driver risk management approach beyond basic Motor Vehicle Record (MVR) checksMVRs aren’t always a good indicator that a person is a safe and competent driver. If a person lives in a city and doesn’t drive much, the chances are they have a stellar driving record. Yet, their road experience is very limited. Employers need to drill down to evaluate the record.
  2. Mandate driver safety programs for all drivers, including those in mileage reimbursement programsOnly 42.6 percent of companies currently mandate driver safety programs for employees in company-owned vehicle programs. That number drops to just 19.5 percent for employees in mileage reimbursement programs. With mobility increasing, driver distraction at an all-time high, and new technology emerging in vehicles every day, training takes on increased importance and should be a top priority for your business.
  3. Consider a fixed and variable rate (FAVR) reimbursement programUnlike the one-size-fits-all car allowance or cents-per-mile reimbursement programs, fixed and variable rate (FAVR) programs reimburse employees for their individualized fixed and variable costs. Fixed costs are constant, but vary from employee to employee and include insurance premiums, license and registration fees, and taxes and depreciation. The variable costs are based on the number of business miles driven and include gas, oil, maintenance and tire wear.Such an approach ensures that the employer can verify that the driver is complying with the insurance coverage requirements and that they are limiting mileage to work-related trips only, “thereby mitigating exposure to costs associated with off-hour accidents.”

Managing claim denials for cost control

While a study by Lockton Cos. L.L.C. found that the number of claim denials for injured workers is increasing, rising from 5.8% in 2013 to 6.9% in 2017, 67% of those initial denials were paid within 12 months. What’s even more disconcerting is the increased cost of the denied claims that were eventually accepted. Based on an examination of 273,000 claims from 150 Lockton clients between 2013 and 2017, denied claims cost 55% more on average at the 60-month mark: $15,694 instead of $10,154 for an accepted claim.

This increased cost is understandable because a worker with a denied claim usually will seek medical care from the primary care physician and the costs will not be subject to a negotiated workers’ comp fee schedule. The authors are not suggesting that companies deny fewer claims but are urging companies to look closely at what is being denied and the process.

“Take a closer look at your company’s converted denial rate, and whether savings from indemnity and medical costs are enough to offset increased expense on denied claims that end up paying out,” note the authors. Look at the claims that were denied and overturned and see if there are common threads. Is it an internal decision or a decision on the part of the carrier? Are they concentrated in one division? Has there been an increase in denial rates and, if so, why? Pressure to reduce costs or increased focus on fraud?

The study revealed the top 10 reasons for claims denials: no medical evidence; no injury per statutory definition; reservation of rights; pre-existing condition; idiopathic condition; intoxication or drug-related violation; non-work-related stress; failure to report accident timely; doesn’t meet statutory definition of employee; and misrepresentation. The rate at which denial was converted to paid varied with the reason. For example, when “willful intent to injure oneself” was the reason for denial, 89% of the claims were converted to paid. For “pre-existing condition,” the conversion rate was 69%.

In every industry, converted denials cost more than non-denied claims, but some industries vary significantly from the overall averages. Healthcare experiences lower average differences, but Administrative and Support and Waste Management and Remediation Services, and Manufacturing incur higher claim costs than the national average.

There were variations by state also. California has a very high conversion rate compared to the national average, whereas Florida and Texas have lower rates. Litigation is also a major factor. According to the study, 70.6 percent of denied lost-time claims will be litigated, which is more than twice the 27.5 percent litigation rate for non-denied lost time claims.

For Cutting-Edge Strategies on Managing Risks and Slashing Insurance Costs visit www.StopBeingFrustrated.com