OSHA watch

“Good-faith” employers get grace period to comply on crane operator documentation requirements

The requirement that employers must evaluate their operators before allowing them to operate cranes independently is being enforced, but employers making good-faith efforts to comply have a 60-day grace period, according to the enforcement guidance effective on Feb. 7. Employers who have evaluated operators in accordance with the final rule, and are making good-faith efforts to comply with the new documentation requirement are offered compliance assistance, in lieu of enforcement. The grace period ends April 15.

New bulletin for workers wearing devices containing lithium batteries

A new Safety and Health Information Bulletin warns employers and workers of potential fire and explosion hazards stemming from lithium batteries used to power small or wearable electronic devices.

New video on ammonium nitrate emphasis program

A new YouTube video deals with inspections under the ammonium nitrate emphasis program.

Employers urged to prevent worker exposure to carbon monoxide

Employers are reminded to take necessary precautions to protect workers from the potentially fatal effects of carbon monoxide exposure. To reduce the risk of exposure, employers should install an effective ventilation system, use carbon monoxide detectors, and take other precautions as described in the Carbon Monoxide Fact Sheet.

Other resources include videos (in English and Spanish), QuickCards (English) (Spanish)and a fact sheet on portable generator safety.

Alert to Nebraska employers: Increase in amputation injuries

A review of Nebraska workers’ compensation claims found 42 employees suffered amputation injuries in 2018, and employers failed to report more than 65 percent of those injuries within 24-hours, as required. The National Emphasis Program for Amputations targets inspections at workplaces with machinery and equipment that cause, or are capable of causing, amputations. Information and resources are available to help employers identify and eliminate workplace hazard.

Enforcement notes

California

  • Solus Industrial Innovations, a plastics manufacturing plant in Rancho Santa Margarita was cited for willfully, knowingly and intentionally maintaining an unsafe and hazardous work environment after two workers were killed in an explosion caused by a water heater that was never intended for commercial use. The case was referred to the local district attorney’s office and a $1.6 million judgment was obtained in a civil case.
  • Platinum Pipeline Inc., based in Livermore, received a $242,600 fine after a worker died when a trench built for a storm drain project collapsed.
  • A joint venture of Shimmick Construction Co. Inc., of Oakland and San Francisco-based Con-Quest Contractors Inc. faces a $65,300 fine after a worker was fatally struck by a steel beam in 2018 while working on a light rail tunnel project in San Francisco.

Connecticut

  • The U.S. District Court for the District of Connecticut ordered Eastern Awning Systems Inc., a manufacturer of retractable fabric patio awnings based in Watertown, and its owner Stephen P. Lukos to pay a total of $160,000 to two discharged employees who filed safety and health complaints. The judgment also requires the employer to provide neutral letters of reference for the two discharged employees, and to post the judgment and notice of employees’ rights prominently at the workplace.

Florida

  • Inspected under the Regional Emphasis Program for Falls in Construction, Crown Roofing LLC was cited for exposing employees to fall hazards at two separate residential worksites in Port St. Lucie and Naples. The Sarasota-based contractor faces penalties of $265,196. It has been inspected 17 times in the past five years and 11 inspections have resulted in repeat violations.
  • OSHRC affirmed two serious violations, and reinstated one stemming from an inspection of gas line work – overturning an administrative law judge’s decision – and increased the fine from $5,500 to $9,000 against Dade City-based Florida Gas Contractors Inc.

Georgia

  • Hilti Inc., a hardware merchant wholesaler, was cited for exposing employees to struck-by hazards after an employee was injured while operating a forklift at a distribution center in Atlanta. The Plano, Texas-based company faces penalties of $164,802.
  • Eye Productions Inc., a motion picture company, was cited for failing to provide adequate head protection during stunts while filming the “MacGyver” show in Chattahoochee Hills. Proposed penalties total $9,472.

Massachusetts

  • In Secretary of Labor v. HRI Hospital Inc. d/b/a Arbour-HRI Hospital, an administrative law judge vacated a citation that HRI Hospital Inc., based in Brookline, failed to adequately protect its employees from being physically assaulted by patients.

Minnesota

  • In Secretary of Labor v. SJ Louis Construction of Texas Ltd. (a division of SJ Louis Construction Inc., of Rockville, Minnesota), the ALJ determined that SJ Louis, an underground utilities contractor, failed to construct a trench in Cypress, Texas, in compliance with regulations and failed to provide employees proper egress. A penalty of $36,000 was assessed.

Pennsylvania

  • U.S. District Court for the Eastern District has entered a consent judgment ordering Blown Away Dry Bar and Salon, based in Kennett Square, to pay a $40,000 settlement to a fired hair stylist. Investigators determined the defendants retaliated against the employee when her husband reported workplace safety and health hazards to OSHA, a violation of the (OSH) Act.
  • An administrative law judge of the OSHRC affirmed a general duty clause citation against Brooke Glen Behavioral Hospital’s facility in Fort Washington for exposing its employees to workplace violence, as well as a $12,471 penalty.
  • KidsPeace Inc. was cited for exposing employees to workplace violence hazards at two behavioral and mental health facilities in Orefield. The company faces proposed penalties totaling $29,010.

Tennessee

  • Hankook Tire Company received 11 citations and faces $85,200 in penalties for failure to conduct periodic crane inspections, provide adequate personal protective equipment for workers handling hazardous chemicals, ensure that proper lockout/tagout procedures were followed, and guard machinery.

For additional information.

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

More than 60,000 employers submit data not required by OSHA

General confusion surrounding OSHA’s electronic record-keeping rule may spell trouble for some employers that voluntarily submitted data even though they are not regulated by the rule. Although the “courtesy” submissions may seem harmless, OSHA is using the data to target enforcement activities.

In a webinar, Daniel Deacon, a Washington, D.C.-based associate in Conn Maciel Carey LLP’s OSHA and labor and employment practice groups, reported that in 2017 there were 60,956 so-called out-of-scope submissions of Form 300A data, up from 52,171 in 2016. He noted confusion about the rule, misunderstanding of the thresholds for employment figures, and states that have not adopted the rule all contribute to this surprisingly high number.

According to OSHA, there is significant underreporting problem. The agency reported that more than one-third of the workplaces did not submit required reports in 2016. Under its Site Specific Targeting 2016 Program, the agency is targeting inspections of employers that should have reported, but did not. Moreover, compliance officers have been directed to review reporting records on all inspections.

March 2, 2019, was the deadline for employers to electronically report OSHA Form 300A data for calendar year 2018. The establishments covered by this requirement are specified on OSHA’s Injury Tracking Application webpage.

Other reporting challenges

Although employers are getting more comfortable with the severe injury reporting rule adopted in 2015, incidents are being reported to OSHA that should not be reported. On the other hand, OSHA has issued at least 400 citations for late reporting or failure to report.The rule requires employers report the inpatient hospitalization of a single employee as well as all amputations and loss of an eye within 24 hours.

Here are some key provisions:

  • If the injury or illness resulted in the employee’s death within 30 days of the incident, it is reportable to OSHA within eight hours of learning the outcome.
  • If the injured worker went to the hospital, was the employee formally admitted to the inpatient service of the hospital? If yes, did they receive medical treatment (more than observation or diagnostics) after admission? If yes, reportable to OSHA within 24-hours of learning the outcome.
  • Common mistakes in reporting: reporting when employee spent more than 24 hours in emergency service before being formally admitted; inpatient medical treatment was deferred for more than 24 hours; medical treatment was provided beforeadmission to the inpatient service; not reporting inpatient first aid treatment.
  • Did the injury result in a body part becoming severed from the employee’s body, either during the incident or after the incident in a medical amputation? If yes, did the amputation occur within 24-hours of the work-related incident? If yes, report to OSHA within 24 hours of learning of the outcome.
  • Did the injury result in loss of an eye? If yes, report to OSHA within 24-hours of learning of the outcome. Note: this does not include loss of eyesight.

Other common issues are reporting injuries that are not work related, misunderstanding when the 24-hour timeclock begins, and responding inappropriately to a rapid response letter by blaming the employee for the incident or not offering corrective actions.

The challenges of keeping up with OSHA’s rules and regulations are enormous. While it’s critical to strictly adhere to OSHA requirements, providing unnecessary information or not reporting when you should can lead to something you don’t want…an inspection. If you need help, contact us.

You can also learn more about OSHA Recordkeeping, and benchmarking your injury results at http://www.premiumreductioncenter.com/osha-incident.html, as well  access to FREE OSHA 300 Log recordkeeping software.

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

OSHA watch

Maximum penalty of repeat or willful violation rises to $132,598

The cost of non-compliance is on the rise with the annual adjustment for inflation, effective January 24, 2019. The chart below shows the 2019 increases for each type of violation:

Violation Type/Description CFR Citation 2018 Max Penalty 2019 Max Penalty
Serious 29 CFR 1903.15(d)(3) $12,934 $13,260
Other-than-Serious 29 CFR 1903.15(d)(4) $12,934 $13,260
Willful 29 CFR 1903.15(d)(1) $129,336 $132,598
Repeated 29 CFR 1903.15(d)(2) $129,336 $132,598
Posting Requirement 29 CFR 1903.15(d)(6) $12,934 $13,260
Failure to Abate 29 CFR 1903.15(d)(5) $12,934 $13,260

Reminder: Feb. 1 was deadline for posting Form 300A

Each year, from Feb. 1 to April 30, OSHA’s Form 300A, which summarizes job-related injuries and illnesses logged in the prior calendar year, must be displayed in a common area where notices to employees are usually posted. Details can be found in our January 2019 issue.

Final rule on electronic recordkeeping issued

As expected, the final rule eliminates the requirement for establishments with 250 or more employees or those with 20 to 249 employees in certain industries with historically high occupational injury and illness rates to electronically submit information from Form 300 (Log of Work-Related Injuries and Illnesses) and Form 301 (Injury and Illness Incident Report) each year. These establishments are still required to electronically submit information from Form 300A (Summary of Work-Related Injuries and Illnesses). The final rule also requires covered employers to electronically submit their Employer Identification Number with their information from Form 300A.

The deadline for electronic submissions is March 2, 2019. More information.

A lawsuit has already been filed by the Public Citizen Health Research Group, the American Public Health Association and the Council of State and Territorial Epidemiologists arguing the final rule violates of the Administrative Procedure Act.

FAQs on silica standard for general industry published

The FAQs, which include answers to 64 questions organized by topic, provide guidance to employers and workers on the standard’s requirements, including exposure assessments, hazard communication and methods of compliance.

Free compliance assistance resources on falls offered online

To help employers prepare for the sixth annual National Safety Stand-Down to Prevent Falls in Construction, set to take place May 6-10, the following resources are online:

Requirements for trainers in Outreach Training Program revised

Among the 18 changes, which are scheduled to go into effect April 1, is eliminating the 90-day grace period after a trainer card expires, as well as updating the trainer code of conduct and responsibilities.

New safety resource on safe operation of tractors

A new rollover protection brochure provides information in English and Spanish on the safe operation of tractors. It emphasizes the importance of using rollover protective structures and seat belt systems to help reduce worker injuries.

Enforcement notes

California

  • US Postal Service faces fines of $149,664 for not addressing worker safety in high-heat conditions after a mail carrier was found dead in a postal vehicle on a record-setting 117-degree-Fahrenheit day in July.

Florida

  • Compass Group USA Inc., operating as Chartwells Dining, was cited for exposing employees to burn and chemical hazards at its cafeteria in Coral Gables. The company faces $134,880 in penalties for exposing employees to hazards associated with exit routes, failing to provide suitable facilities for quick drenching for employees who work with cleaning chemicals, and for not providing effective training to the employees working with the chemicals.
  • Inspected under the REP for Falls in Construction, Ad-Ler Roofing Inc. was cited for exposing employees to dangerous falls at a Naples residential worksite, one month after similar violations were found at another worksite. The Fort Myers-based contractor faces penalties of $91,466.

Missouri

  • New Haven-based Franklin County Construction LLC faces $56,910 in penalties after an employee suffered fatal fall injuries when a roof truss collapsed.

Nebraska

  • Hastings-based Noah’s Ark Processors is facing $182,926 in penalties after an employee suffered severe burns caused by exposure to anhydrous ammonia at one of its meat processing facilities. Sixteen serious violations were issued relating to process safety management (PSM) program deficiencies, failing to guard roof openings, and electrical safety and lockout/tagout violations.
  • An administrative law judge of the OSHRC affirmed a serious violation and $11,408 penalty after an employee was hospitalized due to an arc flash. Jacobs Field Services’ policy of permitting employees to remove portions of their personal protective equipment after they had determined the load side – but not the line side – of an electrical disconnect box was de-energized violated the statute.

New York

  • St. Louis, Mo-based Western Specialty Contractors is facing criminal charges and $155,204 in penalties for exposing employees to serious injuries. Operated by an untrained employee, an unsecured mini-crane overturned and fell four stories at an NYC worksite.
  • An administrative law judge of the OSHRC affirmed a serious violation against Fairport-based Ontario Exteriors Inc. when a worksite policy that directed its employees to traverse a steep second-story roof without fall protection at the beginning and end of each work day resulted in the injury of one worker. The law judge reduced the fine in half to $1,811 noting that the court believes the company will comply with fall protection requirements in the future.

Pennsylvania

  • Spear Excavating LLC based in Pennsburg was cited for exposing employees to trenching hazards at a worksite in Malvern. The company faces $106,057 in proposed penalties. The inspection was initiated by a complaint.
  • An administrative law judge of the OSHRC affirmed a serious citation and $11,408 fine against Coastal Drilling East LLC after an employee’s finger had to be amputated following a workplace accident. Cited under the general duty clause, the company argued that abatement of the cited condition was infeasible and the violation was the result of unpreventable employee misconduct, but the law judge cited an absence of training, instruction, and supervision and inconsistent enforcement.

Wisconsin

  • Two utility contractors – Bear Communications LLC of Lawrence, Kansas, and subcontractor V C Tech Inc. of Ypsilanti, Michigan – were issued a serious safety violation, and face penalties of $12,934 each – the maximum penalty allowed when they failed to establish the location of underground utilities prior to beginning excavation work. A volunteer firefighter responding to the incident was fatally injured.

For additional information.

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

OSHA: 2018 enforcement facts and what to watch for in 2019

What happened in 2018

A recent webinar by Conn Maciel Carey L.L.P., a Washington-based law firm, took a look at OSHA enforcement action in 2018 with surprising results:

  • Despite expectations that many of the enforcement programs would be retired, the agency continues to implement the same number of enforcement emphasis programs as were implemented at the end of the Obama administration (150 local and regional programs and nine national)
  • There was a $5M increase in the FY 2019 budget and state OSH programs received a $2M increase, the first since FY14, rather than the expected budget cuts
  • Still no Assistant Secretary of Labor for OSHA (longest ever vacancy)
  • Statutory requirement to increase penalties annually remains in place
  • Number of inspections was similar to FY2017, and larger than FY16, the last year of the Obama administration – 32,202
  • Total violations issued was slightly lower than FY 2017 – 52,141 – and about 12% lower than FY16
  • A high percentage of inspections result in the issuance of violations – 28%. This has been relatively stable over the past eight years, indicating it is very difficult to have a clean OSHA inspection
  • The average penalty per serious violation increased significantly – 37.6% to $5,016
  • Although the number of $100,000+ penalty cases dropped from the record-setting 218 in FY17, there were 168 in FY 2018. This is still one of the top five years of $100,000+ enforcement actions
  • The heavy use of repeat violations has continued, with 5.1% of all violations in this category. The percentage has been over 5% since FY2016
  • A 2016 site-specific targeting inspection plan offers insights on how OSHA will use the 300A injury data collected under the new e-recordkeeping rule. Establishments with elevated DART rates and those that did not submit the required data are the primary targets, but others can be inspected
  • There has been continued expansion of the general duty clause to cite employers for heat stress, ergonomics, workplace violence, and chemical exposures below PEL
  • A May 2018 memo formalized the use drones to collect evidence, including the requirement that the agency obtain employers’ consent. Some fear the use of drones has the potential to expand OSHA’s violation-finding capabilities during any inspection and that the guidelines are too vague

Significant case decisions

  • The Obama administration expanded the “look-back” period, which is the basis of repeat violations to five years from the three years that was in the field operations manual. In Triumph Construction vs. Sec of Labor, the court found that OSHA is not bound by any look-back period since it is not in the statute or the regulations. Although the five-year period is still in the manual, legally there can be an indefinite look-back period.
  • The ability of OSHA to expand an unprogrammed injury inspection (based on a reported hospitalization) to a wall-to-wall inspection was addressed in U.S. v. Mar-Jac Poultry. The 11th Circuit court rejected the warrant to inspect the facility based on the injuries recorded on the 300 log, which it found did not establish reasonable suspicion of violations.
  • OSHA successfully defended the legality of its multi-employer policy and ability to cite a general contractor as a “controlling employer” in Acosta vs. Hensel Phelps.
  • Under the Obama administration, there was an effort to expand “per day” violations, which a grain handler challenged. The OSHRC ALJ granted Summary Judgment to the employer, noting per day penalties are inconsistent with the statute except when regulation language is clear such as for failure to abate.
  • EPA tried to delay the implementation of the EPA’s RMP amendments that were made in the final hours of the Obama administration, but the court found the delay rule unlawful.

What’s happened in 2019?

  • OSHA was fully funded so its enforcement activities were not affected by the government shutdown
  • There was a delay in the annual increase in penalties because the Federal Register was shut down, but the increase is in place now (see OSHA Watch below)
  • Scott Mugno was re-nominated for Assistant Secretary of Labor for OSHA on January 16
  • A final rule on electronic recordkeeping eliminates the requirement for large and certain high-risk establishments to annually submit 300 logs and 301 incident reports. The establishments are still required to electronically submit information Form 300A and to submit their employer identification number

What’s expected

  • Further amendments to beryllium standard
  • Final rule to remove critical language of “unexpected energization” from Lockout Tagout standard
  • Hazard Communication standard revisions to align with the current version of Globally Harmonized System of Classification and Labeling (GHS)
  • Possible changes to Table 1 of the new Silica rule
  • Further challenges to electronic recordkeeping

Takeaway: To date, there has not been the pullback on enforcement that was expected under the Trump administration. It remains aggressive and citations are more expensive. If a company is inspected there is only a one in four chance that it will not receive a citation. Forward-thinking companies are vigilant about compliance.

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

OSHA alert: Injury reporting records take on increased importance and upcoming deadlines

Form 300A posting deadline: February 1, 2019
Electronic rule making update
Form 300A electronic submission deadline: March 2, 2019
How the data is being used: Site-Specific Targeting Initiative

This month, all employers required to keep Form 300, the Injury and Illness Log, should be reviewing the Log to verify that entries are complete and accurate and correcting any deficiencies. Two important dates are approaching. The annual summary of injuries and illnesses recorded on OSHA Form 300A, Summary of Work-Related Injuries and Illnesses, must be posted where notices are customarily located in workplaces, no later than February 1, 2019 and kept in place until April 30.

Under the electronic record-keeping rule, certain employers must submit the form electronically to OSHA by March 2, 2019. And there is now an inspection targeting plan based on the data submitted under this rule, subjecting employers to further scrutiny of their injury and illness rates. Given the potential impact for inspections, employers should carefully ensure they submit accurate records. They should also proactively monitor and address patterns in their injury and illness rates to lower recordable injuries.

Form 300A posting deadline February 1, 2019

When an accident occurs, an employer must document a recordable injury or illness on the OSHA Form 300 log within seven days. Employers should pay careful attention to their logs and the work relatedness of safety incidents, particularly in light of the electronic submission rule. Some employers tend to focus on medical treatment or days away from work, rather than beginning with – was this work-related? The OSHA Regulation 29 C.F.R. §1904.7 contains an in-depth overview of recordable injuries and illnesses. Additional information on determining medical treatment and first aid can be located at 29 C.F.R. §1904.7(b)(5).

Standard interpretations on recordkeeping issued in 2018 include:

  • Prescription medications, such as an Epi-Pen considered medical treatment beyond first-aid. – [1904.7]
  • Clarification on the use of a cold therapy only setting on a therapeutic device is first-aid – [1904.7(b)(5)(ii)]

A Form 300 log is required for each physical establishment location that is expected to be in operation for at least one year. Form 300A summarizes the total number of fatalities, missed workdays, job transfers or restrictions, and injuries and illnesses as recorded on Form 300. Even if there were no recordable incidents in 2018, companies required to maintain records still must post the summary with zeros on the total lines. Copies should be made available to any employee who might not see the summary (such as a remote employee who works from home).

A company executive, as defined by OSHA, must certify the summary. Employers must keep the records for five years following the calendar year covered by them, and if the employer sells the business, he or she must transfer the records to the new owner.

Electronic rule-making update

Last month, the U.S. District Court for the District of Columbia denied the Trump administration’s motion to dismiss litigation challenging OSHA’s decision to suspend parts of its electronic record-keeping rule. Initiated by three public health advocacy groups, Public Citizen Health Research Group, the American Public Health Association and the Council of State and Territorial Epidemiologists, the lawsuit argued that OSHA’s action was not simply an exercise of enforcement discretion, but rather a complete suspension of a regulatory deadline subject to review.

However, importantly, the federal court also denied a preliminary injunction barring OSHA from implementing its planned delay, noting the advocacy groups had not demonstrated that they will suffer irreparable harm absent preliminary injunctive relief. Also, the court decision was not on the merits of the case, but rather on whether the group had standing to sue or the case should be dismissed as OSHA argued.

Originally, as part of its electronic recordkeeping rule, OSHA mandated that certain employers submit 2017 data from Forms 300, 300A and 301. However, on July 30, 2018 a proposed rule officially eliminated the Forms 300 and 301 data submission requirements. While the Fall 2018 Regulatory agenda had predicted that the proposed regulation would go over to OMB’s Office of Information and Regulatory Affairs (OIRA) on time for the standard to be issued in June 2019, the final draft was submitted earlier than expected on December 7, 2018.

But for many employers this proposed rule does not go far enough. Since it does not rescind the agency’s plan to publish employer information, they argue it puts employers at risk for improper disclosure and release of sensitive employer information. Nor does it formally repeal the provisions regarding post-incident drug testing or incentive programs, although an October 2018 memorandum was issued to clarify these provisions. And the anti-retaliation provisions are unchanged.

Form 300A electronic submission deadline: March 2, 2019

Establishments with 250 or more employees that are currently required to keep injury and illness records under the Recordkeeping Standard, as well as establishments with 20-249 employees that are also covered by the Recordkeeping Standard and operating in certain industries with historically high rates of occupational injuries and illnesses are now required to submit their calendar year Form 300A electronically by March 2, 2019.

How the data is being used: Site-Specific Targeting Initiative

On Oct. 16, 2018, OSHA launched a “site-specific targeting” plan, SST-16, that uses employer-submitted data from 2016 to select non-construction worksites for inspections. The SST-16 directs that “OSHA will create inspection lists of establishments with elevated Days Away, Restricted or Transferred (DART) rate, together with a random sample of establishments that did not provide the required 2016 Form 300A data to OSHA.” The employers are chosen using software that randomly selects the establishments.

Although establishments with elevated DART rates and those that did not submit the required data are the primary targets, establishments with lower DART rates can also be inspected. A random sample of low injury rate establishments on the inspection list will be selected to verify data accuracy.

While OSHA inspections are generally unwelcome, SST inspections are particularly onerous. They are unannounced, comprehensive, and can take significant time and resources. They are not limited to recordkeeping practices, potentially hazardous areas, or operations with an elevated DART rate, and often result in substantial citations. Employers that failed to comply with the electronic reporting requirements for 2016 or reported a high elevated DART rate (compared to industry average rates) would be wise to begin preparing for an inspection.

Despite the expectation that the Trump Administration would significantly lessen the burden of data submission requirements on employers, much of it appears here to stay, at least for a while. There have been fewer shifts in OSHA enforcement and rulemaking than expected by experts, who point to the leadership void at the agency. While Scott Mugno’s nomination was sent to the Senate on Nov. 1, 2017, it has been stalled and OSHA still does not have a Senate-approved Assistant Secretary – the longest ever vacancy.

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

OSHA watch

Final rule on crane operator certifications issued

As anticipated, the final rule clarifying certification requirements for crane operators, requires certification by type of crane or type of crane and lifting capacity. “Certification/licensing” must be accomplished via an accredited testing service, an independently audited employer program, military training, or compliance with qualifying state or local licensing requirements. Employers also are required to “train operators as needed to perform assigned crane activities” and provide training when it is necessary to operate new equipment.

Most requirements in the final rule became effective on Dec. 9, 2018. The evaluation and documentation requirements will become effective on Feb. 7, 2019. Employers who have evaluated operators prior to Dec. 9, 2018 will not have to conduct those evaluations again, but have to document when those evaluations were completed.

New publication on lockout/tagout and temporary workers

A new bulletin on lockout/tagout explains the joint responsibility of host employers and staffing agencies to ensure that temporary employees are properly protected against the sudden release of stored energy. Prior to beginning work, both employers should review the task assignments and job hazards to identify, eliminate, and control the release of hazardous energy before workers perform service or maintenance on machinery.

Regional Emphasis Program (REP) in Pacific Northwest for fall protection in construction

Enforcement of the REP, which includes Alaska, Idaho, Oregon and Washington, will begin after a period of outreach and education. Enforcement activities will include “onsite inspections and evaluations of construction operations, working conditions, recordkeeping, and safety and health programs to ensure compliance.”

Cal/OSHA emergency regulations approved for electronic submission form 300A by December 31, 2018

The Office of Administrative Law approved the emergency regulations that businesses required to submit the Cal/OSHA Form 300A online include all establishments with 250 or more employees, unless specifically exempted by section 14300.2 of Title 8 of the California Code of Regulations, and establishments with 20 to 249 employees in the specific industries listed on page 8 of the emergency regulation’s proposed text (including common industries such as manufacturing, grocery stores, department stores, and warehousing and storage).

Enforcement notes

California

  • Oakland-based general contractor, Bay Construction, Inc., was cited for dismantling a trench box while an employee was still working inside and later killed by a loosened support rail. The company was issued nine citations with $141,075 in proposed penalties, including five classified as general, two serious, one serious accident-related and one willful-serious accident-related.
  • Amazon Landscaping Co. faces six citations and $54,750 in penalties after a worker was fatally injured when a rope he had around his body became entangled in the stump grinder and he was pulled into the cutting wheel.
  • After a series of appeals relating to citations issued to Pinnacle Telecommunications Inc. after an employee suffered serious head injuries from a 7-foot fall from a telecommunications structure, the Alameda County Superior Court affirmed that fall-protection safety orders apply to elevated indoor telecommunications structures and the penalty of $25,560.

Florida

  • PGT Industries Inc., operating as CGI Windows and Doors Inc. in Hialeah, was cited for machine guarding hazards after an employee suffered a partial finger amputation while working on an unguarded punch press. The window and door manufacturer faces $398,545 in penalties, including the maximum amount allowed by law for the violations that can cause life-altering injury.
  • Inspected under the REP on falls, Crown Roofing, LLC, was cited for exposing employees to fall hazards, including installing roofing materials without the use of a fall protection system. The roofing contractor was issued the maximum allowable penalty of $129,336.
  • Inspected under the REP on falls, Panama City Framing LLC was cited for exposing employees to fall hazards at a worksite in Panama City. The company faces $113,816 in proposed penalties.
  • Tom Krips Construction Inc. and Etherna Services Inc. were cited after a lattice boom section of a crane fell onto an employee during disassembly, crushing his foot and ankle at a Fort Lauderdale worksite. Tom Krips Construction Inc. faces $29,877 in penalties, and Etherna Services Inc. penalties total $5,174.

Georgia

  • Dollar Tree Distribution Center, Inc., and U.S. Xpress, Inc., were cited for exposing workers to hazards after an employee was fatally struck by a forklift and face penalties of $130,112 and $12,934 respectively. Both companies were cited for failing to ensure that employees wore high-visibility vests while working at night inside the center and Dollar Tree Distribution Center Inc. was also cited for using a vehicle with a non-functioning headlight, failing to guard a nip point on a conveyor discharge belt, and storing unstable materials on racks.

Massachusetts

  • Northeast Framing Inc., based in Lunenberg, was cited for exposing workers to falls and other hazards following an employee’s fatal fall at an East Boston worksite. The company faces $311,330 in penalties, the maximum allowed by law.

Nebraska

  • Rivera Agri Inc., a provider of temporary agricultural labor, was cited for failing to protect employees working in excessive heat after a farmworker succumbed to apparent heat-related symptoms while working in a cornfield near Grand Island. The company was cited for a serious violation of the General Duty Clause, and faces proposed penalties totaling $11,641.

For more information.

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

OSHA watch

OSHA softens hard line on workplace safety incentives and post-incident drug testing

See post – Much needed clarification from OSHA on anti-retaliation

FY 2018 preliminary list of top ten violations

See second article above – Preliminary list of top ten OSHA violations includes eye and face protection for first time

Employers targeted in record-keeping crackdown

Under this site-specific program, inspections will target employers the agency believes should have provided Form 300A data, but did not for the calendar year 2016, which had to be electronically submitted by Dec. 15, 2017. It will target high injury rate establishments in both the manufacturing and non-manufacturing sectors for inspection, but will not include construction worksites.

Regulatory agenda update

Released in October, the regulatory agenda had few surprises. Occupational Exposure to Beryllium and Beryllium Compounds in Construction and Shipyard Sectors, Crane Operator Qualification in Construction, Rules of Agency Practice and Procedure Concerning OSHA Access to Employee Medical Records, and Tracking of Workplace Injuries and Illnesses are in the final rule stage.

National Emphasis Program (NEP) on trenching and excavation safety

The updated NEP on trenching and excavation safety became effective October 1. It provides education and prevention outreach during the first 90 days of the program, and will respond to trench-related complaints, referrals, hospitalizations and fatalities. Enforcement activities will begin once the outreach program expires. State Plans are expected to follow suit.

Regional Emphasis Program (REP) addresses ammonium hazards in farming industry

Covering seven states, Arkansas, Kansas, Louisiana, Missouri, Nebraska, Oklahoma, and Texas, this REP addresses hazards from exposure to fertilizer-grade ammonium nitrate (FGAN) and agricultural anhydrous ammonium. The program began Oct. 1, 2018 with three months of education and prevention outreach and enforcement will follow and continue until Sept. 30, 2019, unless the program is extended.

Fact sheet on initiating a naloxone program

NIOSH has published a new fact sheet Using Naloxone to Reverse Opioid Overdose in the Workplace. It provides a series of steps for employers to consider when deciding whether to make the overdose reversal medication available in the workplace.

Revised webpage makes state plan information easier to find

A redesigned State Plans webpage has a new color-coded, interactive map to simplify finding contact and jurisdictional information for each state. Users can also access frequently asked questions and details about State Plan activities.

Rejection of OSHA inspection upheld – Georgia

In an unpublished decision, United States of America vs. Mar-Jac Poultry, Inc., the 11th Circuit Court of Appeals ruled that a poultry plant could not be compelled to submit to a company-wide inspection after a worker suffered an electric shock injury. The company reported the incident in a timely manner and when the inspectors requested access to the entire facility, rather than just the hazards involved in the incident, the company refused.

OSHA argued it had the right to expand the scope of the inspection based on (1) a National Emphasis Program (“NEP”) on poultry processing facilities and (2) the company’s recordkeeping forms, such as the 300 Logs. An magistrate judge held that OSHA did not have reasonable suspicion of the other hazards based on the 300 Logs and that Mar-Jac had not been selected by neutral criteria under the NEP. Upon appeal, the decision was upheld. The court concluded that the mere recording of work-related injuries or illnesses does not mean that they were the result of a violation of an OSHA standard, rule or regulation.

Cal/OSHA issues notice of emergency regulation for electronic submission form 300A by December 31, 2018

Cal/OSHA issued a notice of emergency regulation that businesses required to submit the CalOSHA Form 300A online include all establishments with 250 or more employees, unless specifically exempted by section 14300.2 of Title 8 of the California Code of Regulations, and establishments with 20 to 249 employees in the specific industries listed on page 8 of the emergency regulation’s proposed text (including common industries such as manufacturing, grocery stores, department stores, and warehousing and storage).

30-day time limit for employer to challenge safety citation – California

In RAAM Construction v. Occupational Safety and Health Appeals Board, an appellate court ruled that a contractor has 30 days from the date of a decision by the Appeals Board to bring a challenge, without extra time to account for the mailing of the decision. RAAM argued that its petition was timely, since it was filed within 30 days of learning of the denial, but the court said the trigger of the time period is the filing of the order, not the date of service.

Enforcement notes

California

  • Cal/OSHA issued two willful-serious accident-related citations totaling $225,500 in proposed penalties to Rancho Santa Margarita-based house-framing contractor, Circle M Contractors Inc., for failure to train workers on nail guns and failure to ensure safe operation of these tools after a carpenter was seriously injured. A review of the employer’s injury log showed 34 instances of nail gun injuries suffered by employees since 2016.

Florida

  • C.W. Hendrix Farms Inc. was cited for failing to protect workers from recognized hazards after lightning struck and killed an employee at the Parkland farm. The company faces a penalty of $12,934, the maximum amount allowed.
  • Kasper Roofing & Construction Inc. was cited for exposing employees to fall and other hazards after an employee suffered fatal injuries at a Maitland worksite. The Orlando-based roofing contractor faces $134,510 in penalties, the maximum allowed by law.

Georgia

  • An administrative law judge with the OSHRC vacated a violation stemming from an incident at a chicken processing plant, Norman W. Fries Inc. d/b/a Claxton Poultry Farms, in which an employee’s arm was fractured when it got caught under a conveyor belt. The judge found inspectors failed to prove that the company did not ensure that conveyor belts were protected by a metal frame to prevent such injuries.

Massachusetts

  • Springfield Terminal Railway was ordered to pay $85,000 to an employee who was subjected to retaliation after reporting a work-related injury at its facility in Andover.
  • An administrative law judge with the OSHRC vacated in part and affirmed in part violations following a 2015 fatality at a pharmaceuticals plant in South Easton. Pharmasol Corp. successfully contested a serious violation under the general duty clause for underride hazards.

Missouri

  • An administrative law judge with the OSHRC affirmed a citation against Kansas City-based Adam Ham Construction LLC for violating residential fall protection requirements and assessed a $3,741 penalty. The owner did not follow through in contesting the citations.
  • Blue Springs-based Arrow Plumbing LLC admitted to willfully violating the safety standards to require and enforce the use of trench boxes or other trench protection techniques at a home construction site in Belton. An employee was killed when an unprotected trench collapsed on him. Along with its successor company R2 Plumbing LLC, it agreed to implement several safety enhancements and it will pay a civil monetary penalty of $225,000.

Pennsylvania

  • Harmony-based Insight Pipe Contracting LLC was placed in the Severe Violator Enforcement Program and faces $331,101 in fines following a safety inspection initiated after an employee suffered a fatal electrocution at a worksite in Johnstown. Violations included failing to develop and implement procedures for confined space entry, train employees on confined space hazards, conduct atmospheric testing before permitting entry into a sewer line, use a retrieval line, and complete proper permits.
  • Toy Factory TX LLC was cited for workplace safety violations after an employee suffered an arm amputation while cleaning machinery at the company’s Elysburg plant. Proposed penalties of $112,523 relate to hazardous energy and lockout/tagout violations.

Wisconsin

  • Dura-Fibre LLC, based in Menasha, settled a whistleblower suit and will pay a machine operator $100,000 in back wages and compensatory damages after it terminated him for reporting injuries he and a co-worker sustained.
  • Superior Refining Company LLC, based in Superior, was cited for failing to control the use and release of highly hazardous chemicals after an explosion and fire injured several employees. The company faces $83,150 in proposed penalties for eight serious violations of the process safety management procedure.
  • JBS Green Bay Inc. was cited for machine guarding violations when an employee suffered serious injuries after becoming caught in an unguarded machine. The Green Bay-based company was cited for one willful and 10 serious violations, and faces proposed penalties of $221,726.

For more information.

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

Update: July 1 deadline for OSHA 300-A electronic data submission

Employers can now begin to electronically report their Calendar Year (CY) 2017 Form 300A data to OSHA. All covered establishments must submit the information by July 1, 2018. Remember, not all establishments are covered by this requirement. To review which establishments need to provide their 2017 data, click here.

Covered establishments with 250 or more employees are only required to provide their 2017 Form 300A summary data. OSHA is not accepting Form 300 and 301 information at this time. Employers can view their submitted CY 2016 Form 300A summary information, but they cannot edit or submit additional 2016 data on this website. According to the OSHA website, the agency is currently drafting a notice of proposed rulemaking (NPRM) to reconsider, revise, or remove provisions of the “Improve Tracking of Workplace Injuries and Illnesses” final rule.

State Plans that have not adopted the rule

While most states have adopted the federal requirements, there are six states that have not or are delaying enforcement: California, Maryland, South Carolina, Utah, Washington, and Wyoming. On April 30, 2018 OSHA issued a press release instructing employers to submit 300A data even if they are in a state that has not adopted the rule. There has been a mixed reaction from the states, but it is generally agreed that Fed OSHA does not have any authority over State Plan employers (only State Plans) and that the remedy for delinquent State Plans is rescinding the approved state plan status, which few expect to happen.

Here is a summary of the responses:

  • California: advised employers to submit 300A data on fed OSHA’s ITA portal
  • Maryland: not requiring employers to submit
  • Minnesota: adopted regulations became effective on May 21, 2018
  • South Carolina: Legislature formally adopted Federal regulation effective May 25, 2018, but are giving employers 6 months to comply (effective date will be November 25, 2018)
  • Utah: instructed employers they may submit 300A data but are not required
  • Wyoming: issued statement confirming rule does not apply to WY employers
  • Washington: issued statement that employers are “still not required to electronically submit data”

Employers in these states may want to adopt a wait and see approach to see what course of action the state in which they operate adopts or how Fed OSHA proceeds on enforcement.

Anti-retaliation provisions

The anti-retaliation provisions of the rule, which became effective December 1, 2016, remain in effect. Essentially, this prohibits employers from discouraging workers from reporting an injury or illness. Employers must inform employees of their right to report work-related injuries and illnesses free from retaliation, which can be satisfied by posting the OSHA workplace poster. An employer’s procedure for reporting work-related injuries and illnesses must be reasonable and not deter or discourage employees from reporting, and the regulation specifically addresses internal injury reporting policies, post-injury drug testing, and safety incentive and compensation programs.

What employers should do

  • Assess whether your establishment meets the reporting criteria
  • Provide refresher training on the requirements
  • Before submitting, audit injury and illness recordkeeping forms
  • Be sure the latest version of the OSHA Rights poster is posted
  • Evaluate injury reporting policies, drug testing policies, and safety incentive and management compensation plans to ensure they do not discourage reporting of injuries
  • If in a state where the rule has not been adopted, stay abreast of both state and federal actions

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OSHA Inspectors ordered to crack down on employers who failed to electronically file

With much confusion surrounding the rule, a little more than a third of workplaces that were required to electronically file their 2016 Form 300A did not file the reports. The agency stopped accepting the 2016 data as of Jan. 1, 2018. In February, compliance officers were instructed to initiate inquiries into whether workplaces had electronically filed their 300A forms for 2016. Failure to file can lead to an other-than-serious citation, with a maximum penalty of $12,934. The agency has six-months from Dec. 15, 2017 to June 15, 2018, to issue citations to those employers who failed to electronically file the required information.

The agency is not requiring electronic OSHA 300 logs or 301 forms now, in anticipation of a new rule. Two types of establishments are expected to continue submitting 300A summary forms electronically: those with 250 or more employees, and those with between 20 and 249 employees in high-hazard industries. The deadline is July 1, 2018.

If you would like FREE access to a secure, online OSHA 300 Log record keeping software, maintain records by location, and allow you to electronically upload the required records, please go to our website by clicking here.

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OSHA alert – Recordkeeping changes

OSHA Form 300A posting deadline February 1, 2018

This month, all employers required to keep Form 300, the Injury and Illness Log, should be reviewing the Log to verify that entries are complete and accurate and correcting any deficiencies. The annual summary of injuries and illnesses recorded on OSHA Form 300A, Summary of Work-Related Injuries and Illnesses, must be posted where notices are customarily located, no later than February 1, 2018 and kept in place until April 30. Even if there were no recordable incidents in 2017, companies required to maintain records still must post the summary with zeros on the total lines. Copies should be made available to any employee who might not see the summary (such as a remote employee who works from home).

When an accident occurs, an employer must document a recordable injury or illness on the OSHA Form 300 log within seven days. Employers should pay careful attention to their logs and the work relatedness of safety incidents, particularly in light of the electronic submission rule. Some employers tend to focus on medical treatment or days away from work, rather than beginning with – was this work related? The OSHA Regulation 29 C.F.R. §1904.7 contains an in-depth overview of recordable injuries and illnesses. Additional information on determining medical treatment and first aid can be located at 29 C.F.R. §1904.7(b)(5).

Standard interpretations on recordkeeping issued in 2017 include:

  • Determining if the employees experienced an injury or illness due to an exposure.[1904; 1904.7(b)(7); 1904.46]
  • Clarification of 1904.31 regarding who is responsible for recording injuries and illnesses when supervision is shared by a prime contractor and subcontractors. [1904.31]

A Form 300 log is required for each physical establishment location that is expected to be in operation for at least one year. Form 300A summarizes the total number of fatalities, missed workdays, job transfers or restrictions, and injuries and illnesses as recorded on Form 300. A company executive, as defined by OSHA, must certify the summary. Employers must keep the records for five years following the calendar year covered by them, and if the employer sells the business, he or she must transfer the records to the new owner.

While the future of the Improve Tracking of Workplace Injuries and Illnesses is uncertain, the Injury Tracking Application (ITA) stopped accepting 2016 data as of January 1, 2018. Employers with 250 or more employees that are subject to OSHA’s recordkeeping regulation must electronically submit information from the Form 300, Form 300A, and the Form 301 to OSHA by July 1, 2018. Establishments with 20-249 employees in certain high-risk industries such as agriculture, forestry, construction and manufacturing, must submit information electronically from Form 300A by July 1, 2018. OSHA then would make the information public on its website.

 

List of top ten violations includes Fall Protection – Training Requirements for first time

While the list of the Top 10 violations for FY2017 remains largely unchanged from 2016, there is a newcomer in ninth place – Fall Protection – Training Requirements.

The full list:

  1. Fall Protection – General Requirements (1926.501) – 6,887
  2. Hazard Communication (1910.1200) – 4,652
  3. Scaffolding (1926.451) – 3,697
  4. Respiratory Protection (1910.134) – 3,381
  5. Lockout/Tagout (1910.147) – 3,131
  6. Ladders (1926.1053) – 2,567
  7. Powered Industrial Trucks (1910.178) – 2,349
  8. Machine Guarding (1910.212) – 2,109
  9. Fall Protection – Training Requirements (1926.503) – 1,724
  10. Electrical – Wiring Methods (1910.305) – 1,530

For more information, the National Safety Council (NSC) provides a detailed description of the specific violations and a summary of the largest penalties.

If you are looking for a way to simply your injury and work comp claims reporting, please feel free to check out our free integrated first report of injury and OSHA recordkeeping software at http://www.stopbeingfrustrated.com/osha-logs.html.

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