The daunting challenge of maintaining a drug-free workplace

With a national opioid crisis that defies holistic solutions, the legalization of medicinal marijuana in more than 30 states and recreational marijuana in 10 states, increases in deadly overdoses in the workplace, changing state laws, confusion over OSHA’s anti-retaliatory drug testing rule, and concerns about medical privacy, no employer should think they are immune to the problem. In fact, according to the National Safety Council (NSC), 15.6% of American workers live with a substance disorder and The Hartford reports that 64% of HR professionals are ill-prepared to help a worker with an opioid addiction.

These factors, coupled with a tight labor market and low unemployment, have led some employers to soften zero-tolerance policies for jobs where safety is not critical and there is a low risk of injury or error. The decision to relax zero-tolerance policies requires buy-in from company leadership and supervisors as well as serious evaluation of the consequences. Although the legalization of marijuana exponentially increases the complexity of the issue, the reasons for maintaining a drug-free workplace remain constant: safety of employees and customers, lower absenteeism, reduced turnover, fewer workers’ comp claims, fewer workplace conflicts, and reduced liability for workplace accidents.

It’s also troublesome for supervisors because substance abuse often falls below the radar of the workplace. Yet, for five consecutive years, unintentional workplace overdose deaths have increased by at least 25%. Drug testing, which is often a critical component of a zero-tolerance policy, can identify those at risk.

Here are five things to consider when evaluating a drug policy:

Legal concerns

While federal law regulating drug testing affects some heavily-regulated industries, there is no comprehensive federal law regulating drug testing in the private sector. The Drug-Free Workplace Act of 1988 requires all recipients of federal grants and some federal contractors to maintain a drug-free workplace.The ADA does not consider drug abuse a disability and allows drug testing; however, disability discrimination is a significant legal risk. If an applicant is not hired or an employee is terminated because of a positive drug test and the medication was legally prescribed for a disability, the employer could be liable. Reasonable accommodations must be provided at application, hiring, and during employment.

State laws that do regulate workplace drug testing vary widely and are constantly changing. Generally, state laws allow employers to drug test job applicants. However, many have rules about providing notice, preventing discrimination, and following procedures to prevent inaccurate samples. The laws governing testing of current employees varies widely by state, with some prohibiting random testing and others requiring ‘reasonable suspicion.’ There are also laws governing post-accident testing. It’s critical to understand and stay abreast of the laws in all the states in which you operate.

Marijuana

Marijuana is one of employers’ biggest worries and one of the driving reasons for employers to relax pre-employment drug testing. There is legitimate fear that it will reduce the pool of qualified candidates. Some address this issue by removing marijuana from the test panel for many positions that are not safety-critical.

The laws vary significantly with states that have legalized marijuana and case law is limited and evolving. Some states have card holder anti-discrimination statutes and some states prohibit firing of an employee who tests positive for marijuana while others allow it. Although all marijuana use is still illegal under federal law, state courts across the country are deciding cases on medical marijuana use and accommodation. Employers are wise to consider whether positive drug tests are connected to medicinal use before making employment decisions.

Employers should be careful about penalizing employees for off-duty marijuana use, since some states have statutes protecting employees. However, most states permit employers to prohibit marijuana use on their premises and to discipline employees who come to work under the influence.

While the uncertainty is unnerving for employers, a growing number of states are writing statutes to remove the ambiguities. Statutes in Arizona, Arkansas, Connecticut, Delaware, Illinois, Maine, Massachusetts, Minnesota, Nevada, New York, Pennsylvania, Rhode Island, Washington DC, and West Virginia address employment protection for medical marijuana patients. It’s still possible to restrict marijuana use in these states, but care needs to be taken in crafting and enforcing a policy.

If you choose to differentiate marijuana policies from other drug policies, consider these questions:

  • Will treating marijuana differently create problems in the workforce?
  • Under what circumstances will employees be tested for marijuana?
  • What are the consequences of not testing (i.e. more injuries, absenteeism)?
  • What is the process to determine a medical exception to the policy?
  • What happens when an employee fails the test?

Workers’ Comp

Substance abuse can contribute to workplace accidents and a drug-free workplace helps prevent accidents, thus lowering workers’ comp costs. In some states, employers implementing a drug-free workplace receive a premium discount. As of October 2018, 13 states had such laws. While the requirements and discounts vary, the states include Alabama, Arkansas, Florida, Georgia, Idaho, Kentucky, Mississippi, Ohio, New York, South Carolina, Tennessee, Virginia, and Wyoming.

In addition, some states have enacted laws to make it easy for employers who properly drug test to deny workers’ compensation benefits. For example, Florida law provides that if the employee tests positive for drugs, then “it is presumed that the injury was occasioned primarily by…the influence of the drug upon, the employee.”

Medical marijuana raises thorny issues for employers. Can a claim be denied if an employee tests positive for using state-approved medical cannabis? Can an injured employee receive medical marijuana to treat a workplace injury? Both are new and evolving issues that will be the subject of future court cases and state regulations. The Minnesota Department of Labor & Industries issued rules allowing cannabis as a reimbursable form of medical treatment.

OSHA

The anti-retaliatory provisions of OSHA’s e-Recordkeeping rule resulted in considerable confusion about post-injury drug testing policies, which was somewhat clarified in a guidance memo in October 2018. Before doing post-accident drug testing, employers should:

  • Have a reasonable basis to conclude drug use could have contributed to the injury
  • Test all employees whose conduct could have caused an accident, even if they were not injured
  • Identify high hazard work as a reason for testing
  • Determine if the drug test can provide insight to the root cause of incident
  • Consider whether drug test is capable of measuring impairment at the time the injury occurred
  • Ensure employees are not discouraged or dissuaded from reporting injuries

Remember, the rule does not affect new hires, random testing, or testing to comply with state or federal laws or required by Workers’ Comp insurers.

Privacy

Although challenges to workplace drug testing policies on the grounds that they violate employees’ privacy have generally not been successful, the manner in which the test is conducted and how the results are used have been successfully challenged. Drug test results are considered protected health information and must be kept confidential. Further, as laws on employee privacy continue to evolve, testing that is not clearly authorized by law could be open to legal challenges.

Conclusion

Zero-tolerance policies are strong stands that send an important cultural message, but like any policy it should be evaluated periodically. How effective has it been? Has it hampered recruitment and retention efforts for positions that are not safety-critical? Has it prevented workers from seeking the help they need to deal with substance abuse? Does it impede flexibility?

Anecdotally, more employers are tailoring drug testing to the job and adding a fitness-for-duty component. Any policy changes require serious consideration as protecting employees remains the top priority. However, no change in policy should excuse an employee who is impaired while working. There’s just too much at risk.

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 watch

Revised Beryllium Standard for General Industry proposed

The proposed rule, published in the Dec. 11 Federal Register, would revise provisions regarding recordkeeping, personal protective clothing and equipment, written control exposure plans, disposal and recycling, medical surveillance, and hazard communication. It also would change or add six terms in the “definitions” paragraph of its regulations: beryllium sensitization, beryllium work area, chronic beryllium disease, CBD diagnostic center, confirmed positive and dermal contact with beryllium.

Another proposed change is removing Appendix A, which lists suggested controls, and replacing it with a new Appendix A, “Operations for Establishing Beryllium Work Areas.”

The enforcement date for the provisions affected by this proposal was December 12, 2018. While this rulemaking is pending, compliance with the standard as modified by this proposal will be accepted as compliance. The deadline to comment on the proposed rule is Feb. 11.

Initiative to increase awareness of trenching and excavation hazards and solutions launched in southeastern states

As part of the agency’s focus on trenching safety, area offices in Alabama, Florida, Georgia, and Mississippi have launched an initiative to educate employers and workers on trenching safety practices. They are reaching out to excavation employers, industry associations, equipment rental organizations, water utility suppliers, and national and local plumbing companies to educate them to identify trenching hazards. Compliance assistance resources are available on the updated Trenching and Excavation webpage.

CPWR infographic provides trench safety tips

CPWR, The Center for Construction Research and Training, developed an infographic focusing on trench safety, including best practices to protect workers in trenches.

(English / Spanish)

Winter weather resources

The Winter Weather webpage provides information on protecting workers from hazards while working outside during severe cold and snow storms. This guidance includes information on staying safe while clearing snow from walkways and rooftops.

Court ruling: general contractors can be cited for hazardous conditions at multi-employer worksites, even if those conditions do not directly affect their own employees

The U.S. Court of Appeals for the 5th Circuit, which covers Louisiana, Texas and Mississippi, recently overturned a ruling of the OSHRC that Hensel Phelps Construction Co., a general contractor, could not be held liable for violations from one of its subcontractors, under the multi-employer work site policy despite it not having any employees exposed to the hazard.

In Acosta v. Hensel Phelps Construction Co., the Fifth Circuit aligned with seven other federal circuit courts in granting OSHA authority to issue citations to controlling employers.

Certification organization releases employer guides on updated crane operator requirements

The National Commission for the Certification of Crane Operators has published three employer guides on the updated crane operator requirements, which went into effect Dec. 10. The two-page guides address the rule’s training, certification and evaluation regulations.

(Training / Certification / Evaluation)

Area offices must use four-part test when citing respiratory hazards without PELs

Area offices must apply a four-part test before issuing General Duty Clause citations for respiratory hazards that do not have a permissible exposure limit, according to a memorandum sent to regional administrators.

The memo, issued Nov. 2, notes that area offices cannot base a General Duty Clause citation on only a “measured exposure” in excess of an occupational exposure limit or a documented exposure to a “recognized carcinogen.” Instead, they must use the following tests in those situations:

  1. The employer failed to keep the workplace free of a hazard to which employees of that employer were exposed.
  2. The hazard was recognized.
  3. The hazard was causing or was likely to cause death or physical harm.
  4. A feasible and useful method to correct the hazard was available.

Enforcement notes

California

  • Santa Cruz-based Future2 Labs Health Services Inc., a manufacturer of cannabis products faces $50,470 in penalties for 10 violations, following an explosion that left a worker seriously injured.
  • A Riverside construction company, Empire Equipment Services Inc., was cited $66,000 for serious workplace safety violations that resulted in the death of a worker when a 17-foot-deep trench collapsed.
  • The U.S. Army Reserve 63 Regional Support Command at a Sacramento maintenance facility was issued safety violations, after a federal civilian employee was fatally injured when the automated lifting mechanism of a utility vehicle cargo box failed and pinned him between the bed and the vehicle frame
  • Southern California Edison received six citations, totaling $95,435 in penalties, after a worker suffered a serious electric shock. Inspectors determined that the company failed to control hazardous energy, isolate exposed underground cables with protective coverings, and eliminate all possible sources of backfeeding energy.

Florida

  • Jacksonville-based Derek Williams, operating as Elo Restoration Inc., was cited for exposing employees to fall hazards at two separate worksites in St. Augustine and Daytona Beach. Inspected under the Regional Emphasis Program on Falls in Construction, the roofing contractor faces $116,551 in penalties.
  • Elo Restoration was also cited, along with Travis Slaughter, operating as Florida Roofing Experts, Inc., for exposing workers to fall hazards at another St. Augustine worksite. Responding to a complaint of unsafe roofing activities, inspectors determined that the companies failed to ensure workers were attached to a fall protection system. Both companies were issued the maximum allowable penalty of $129,336.
  • L.A. Disaster Relief and Property Maintenance LLC, a property maintenance and land clearing company, faces $94,415 in penalties for failing to implement a hazard communication program after an employee suffered burn injuries at a McDavid worksite.
  • Doral-based Nupress of Miami, Inc., a commercial printer, faces $71,139 in penalties for exposing workers to amputation, electrical, and other hazards.
  • Turnkey Construction Planners Inc., a roofing contractor based in Melbourne, was inspected under the Regional Emphasis Program on Falls in Construction and faces $199,184 in penalties for exposing employees to fall hazards.

Georgia

  • Parts Authority LLC, doing business as Parts Authority Georgia LLC, a wholesale auto and truck parts distributor based in Norcross, faces $133,406 in penalties for exposing employees to fire, electrical shock, and struck-by hazards.

Missouri

  • World Wrecking and Scrap Salvage Services Inc., a demolition company, was cited for failing to provide fall protection after two employees suffered fatal injuries at a demolition site in St. Louis and faces penalties of $23,280.

Nebraska

  • Clearwater-based Thiele Dairy was cited for failure to develop and implement safety and health programs related to grain bin entry after an employee suffered fatal injuries and faces penalties totaling $78,899.

Pennsylvania

  • In Secretary of Labor v. J.D. Eckman Inc., an administrative law judge of the OSHRC vacated citations against the bridge and highway construction company related to a workplace incident in which an employee was fatally struck in a traffic control zone. The citation was issued under the General Duty Clause, which the judge found inapplicable under the circumstances.

For more information.

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

Much needed clarification from OSHA on anti-retaliation provisions

My fellow Certified WorkComp Advisor, Dustin Boss, has allowed me to share his summary of the OSHA anti-retaliation clarification that the U.S. Occupational Health and Safety Administration (OSHA) just issued.

OSHA issued a standard interpretation clarifying its position on the new recordkeeping rule’s anti-retaliation provisions. OSHA’s memorandum essentially “rolls back” its enforcement of the anti-retaliation provisions, particularly concerning safety incentive programs and post-accident drug testing.

Why is this important? Many employers struggled to understand the anti-retaliation provisions since they were published in May 2016 in guidance materials accompanying the new regulations. Up until now, OSHA’s explanations have been extremely vague and confusing. But with this new publication, the confusion ends as the interpretation supersedes all the prior guidance on this topic.

So what changed?

OSHA clarifies that it does not prohibit workplace safety incentive programs or post-incident drug testing. It allows that incentive programs can be an important tool to promote workplace safety and health and encourages programs that reward workers for reporting near-misses or hazards and involvement in a safety and health management system.

OSHA also provides that rate-based incentive programs are permissible under the rule as long as they are not implemented in a manner that discourages reporting. If an employer takes a negative action against an employee under a rate-based incentive program, such as withholding a prize or bonus, or a slice of pizza, because of a reported injury, OSHA will not cite the employer under the anti-retaliation provisions as long as the employer has implemented adequate precautions to ensure that employees feel free to report an injury or illness. It hints that the more “substantial” the reward, then the more the employer may need to do to reassure employees they are free to report without retaliation. In other words, pizza parties are back.

In addition, it states that most instances of workplace drug testing are permissible. Examples of permissible drug-testing include:

  • Random drug testing
  • Drug testing unrelated to the reporting of a work-related injury or illness
  • Drug testing under a state workers’ compensation law
  • Drug testing under other federal law, such as a U.S. Department of Transportation rule
  • Drug testing to evaluate the root cause of a workplace incident that harmed or could have harmed employees. If the employer chooses to use drug testing to investigate the incident, the employer should test all employees whose conduct could have contributed to the incident, not just employees who reported injuries.

What should employers do now?

Employers should keep in mind that the regulations do not mention safety incentive programs or drug testing policies. The discussions about prohibitions on drug testing and incentive programs were included in prior guidance given by OSHA, as is yesterday’s interpretation rolling back that position. Thus, this position could change with the next election. For now, employers have some more certainty that the current OSHA is not going to pursue these types of retaliation claims unless there is some strong indications that the employer took action to discourage reporting.

That said, employers need to remember that the key aspect for determining whether their incentive programs are OSHA “compliant” is to treat all employees in a consistent manner and ensure that employees feel free to report an injury or illness.

Regarding employer drug testing programs, to strike the appropriate balance, 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 additional information, see OSHA’s memorandum entitled, “Clarification of OSHA’s Position on Workplace Safety Incentive Programs and Post-Incident Drug Testing Under 29 C.F.R. § 1904.35(b)(1)(iv).”.

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

Things you should know

NLRB issues proposed rule on joint employers

As expected, the National Labor Relations Board (NLRB) has announced publication of a proposed rule on joint employers. The rule will effectively discard the expanded definition of joint employer in the Browning-Ferris Industries decision during the Obama era and return to the much narrower standard that it had followed from 1984 until 2015. An employer may be found to be a joint-employer of another employer’s employees only if it possesses and exercises substantial, direct and immediate control over the essential terms and conditions of employment.

NIOSH publishes guide on air-purifying respirator selection

NIOSH has issued a guide intended to help employers select appropriate air-purifying respirators based on the environment and contaminants at specific jobsites.

Top trend in workers’ comp reform – legislation impacting first responders

According to National Council on Compensation Insurance (NCCI), the introduction of legislation impacting first responders was the top trend in workers’ compensation reforms countrywide, although few bills have passed. In 2018, there were 103 bills dealing with first responders battling post-traumatic stress disorder or cancer, but only five bills passed. Washington and Florida both passed bills that would allow first responders with PTSD to file workers’ compensation claims under certain circumstances, and Hawaii and New Hampshire revised or enacted presumption bills for firefighters battling certain types of cancer. New Hampshire also passed a law that calls for a commission to “study” PTSD in first responders.

Worker fatalities at road construction sites on the rise: CPWR

A total of 532 construction workers were killed at road construction sites from 2011 through 2016 – more than twice the combined total for all other industries – according to a recent report from the Center for Construction Research and Training, also known as CPWR. In addition to the statistics, the report highlights injury prevention strategies for road construction sites from CPWR and several agencies.

State-by-state analysis of prescription drug laws

The Workers Compensation Research Institute published a report that shows how each of the 50 states regulates pharmaceuticals as related to workers’ compensation. Some of the highlights include:

  • 34 states now require doctors to perform certain tasks before prescribing
  • At least 11 states have adopted drug formularies
  • 15 states do not have treatment guidelines to control the prescription of opioids, and preauthorization is not required
  • In at least 26 states, medical marijuana is allowed in some form and nine of those states specifically exclude marijuana from workers’ compensation

Guide and study related to workers and depression

Workers who experience depression may be less prone to miss work when managers show greater sensitivity to their mental health and well-being, recent research from the London School of Economics and Political Science shows. The study was published online in the journal BMJ Open.

In March, the Institute for Work and Health published a guide intended to aid “the entire workplace” in assisting workers who cope with depression or those who support them.

11 best practices for lowering firefighter cancer risk

A recent report from the International Association of Fire Chiefs’ Volunteer and Combination Officers Section and the National Volunteer Fire Council details 11 best practices for minimizing cancer risk among firefighters.

NIOSH offers recommendations for firefighters facing basement, below-grade fires

The Workplace Solutions report offers strategies and tactics for fighting basement and below-grade fires, along with a list of suggested controls before, during and after an event.

Predicting truck crash involvement update now available

The American Transportation Research Institute has updated its Crash Predictor Model. It examines the statistical likelihood of future truck crashes based on certain behaviors – such as violations, convictions or previous crashes – by using data from 435,000 U.S. truck drivers over a two-year period.

This third edition of CPM includes the impact of age and gender on the probability of crashes. It also features average industry costs for six types of crashes and their severity.

State News

California

  • Governor signed four bills related to comp. A.B. 1749 allows the first responder’s “employing agency” to determine whether an injury suffered out of state is compensable. A.B. 2046 requires governmental agencies involved in combating workers compensation fraud to share data, among other changes to anti-fraud efforts. S.B. 880 allows employers to pay indemnity benefits with a prepaid credit card. S.B. 1086 preserves the extended deadline for families of police and firefighters to file claims for death benefits.
  • Governor vetoed bills that would have prohibited apportionment based on genetics, defined janitors as employees and not contractors, identified criteria doctors must consider when assigning an impairment rating for occupational breast cancer claims, called for the “complete” disbursement of $120 million in return-to-work program funds annually, and required the Division of Workers’ Compensation to document its plans for using data analytics to find fraud.
  • The Division of Workers’ Compensation revised Medical Treatment Utilization Schedule Drug List went into effect Oct 1.
  • Independent medical reviews (IMRs) used to resolve workers’ comp medical disputes in the state rose 4.4 percent in the first half of 2018 compared to the first half of 2017; however, in over 90 percent of those cases, physicians performing the IMR upheld the utilization review (UR) physician’s treatment modification or denial. – California Compensation Institute (CWCI)

Florida

  • Workers’ compensation coverage for post-traumatic stress disorder (PTSD) for first responders like firefighters, EMTs, law enforcement officers and others went into effect Oct. 1.

Indiana

  • Workers’ Compensation Board will destroy paper documents in settlements. If parties mail or drop off paper-based settlement agreements and related documents, it will trash them and notify the parties by phone or email to submit online. The board urges parties to follow the settlement checklist and procedure posted on its website.

Minnesota

  • The Department of Labor and Industry formally adopted a number of changes to fees for rehabilitation consultants.
  • Department of Labor and Industry approved rule changes that slightly increase fees for medical and vocational rehabilitation services, and increase the threshold for medical, hospital and vocational rehabilitation services that treat catastrophically injured patients.
  • Effective Jan. 1, the assigned risk rate, which insures small employers with less than $15,000 in premium, and employers with an experience modification factor of 1.25 or higher, will decrease 0.7%.

Missouri

  • A new portal from the Department of Labor offers safety data, video, and training programs.

New York

  • The Workers’ Compensation Board has launched its virtual hearings option for injured workers and their attorneys. For more information.
  • Attorneys or representatives are now required to check-in to all hearings using the online Virtual Hearing Center when appearing in person at a hearing center.

Virginia

  • The Department of Labor and Industry has issued a hazard alert warning of the potential dangers of unsafe materials handling and storage in the beverage distribution and retail industry.
  • The Workers’ Compensation Annual Report for 2017 shows claims and first report of injury are trending up, bucking the downward trend nationally. There has also been a big jump in alternative dispute resolutions.

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

 

OSHA watch

OIG finds flaws in fatality and severe injury reporting program

In a recent audit report the Department of Labor Office of Inspector General noted OSHA is not doing enough to ensure it has complete information on work-related deaths and severe injuries, and is not consistent in citing establishments that fail to file required reports. While disputing some of the findings, the agency agrees that better case documentation could promote consistency in issuing citations, but expresses concern that the report suggests the “burden to ensure reporting of injuries and illnesses falls on the agency” instead of employers.

Budget increase expected

A “minibus” appropriations bill approved by the congressional conference committee includes a $5 million increase in OSHA’s budget. It also allocated no more than $102.4 million to State Plans, an increase of $1.5 million, the first increase since 2014. The Susan Harwood Training Grants Program is slated to remain viable for another fiscal year, receiving around $10.5 million.

Federal compliance assistance efforts are scheduled for a $2.5 million increase to $73.5 million, and at least $3.5 million is going to the Voluntary Protection Programs. The enforcement budget is slated for a $1 million boost to $209 million.

Legionellosis webpage updated

The Legionellosis webpage has been updated to include information on preventing, identifying and managing workplace exposure to Legionella bacteria hazards. The Legionella eTool, is a device intended to assist employers, health care providers, and safety and health professionals when inspecting jobsites for Legionellosis.

New trenching resources

An updated Quick Card on trenching operations provides information on protecting workers around trenches, including daily inspections, and trench wall safety.

A new 45-sec public service announcement on trench safety, 5 Things You Should Know to Stay Safe, features U.S. Secretary of Labor Alexander Acosta and highlights well-known and proven safety measures that can eliminate hazards and prevent worker injuries.

Website to feature safety tip of the week

Every Monday, the OSHA homepage will feature a brief safety tip to help employers and workers prevent workplace injuries and illnesses. Each tip will link to educational and training resources.

California – Recordkeeping violations extended to five years

A bill, AB 2334, expanding the statute of limitations for recordkeeping requirements under the jurisdiction of the California Division of Occupational Safety and Health (“Cal/OSHA”) was signed into law and becomes effective January 1, 2019. The bill changes the definition of “occurrence” in the California Labor Code for purposes of the statute of limitation for violations relating to recordkeeping, “until…corrected, or the division discovers the violation, or the duty to comply with the violated requirement ceases to exist.” In effect, it gives Cal/OSHA the authority to issue citations for recordkeeping violations that exist during the entire five-year period employers are required to maintain injury and illness records. Previously, employers could not be cited for violations that took place more than six months before the citation was issued, the same as the federal statute.

Enforcement notes

California

  • San Jose-based GreenWaste Recovery Inc., a waste removal company, was cited $46,270 for serious violations after a worker was run over by a truck and killed.
  • Disneyland was cited and fined $33,000 for failing to properly clean water storage tanks following an outbreak of Legionnaires’ disease in August of last year that affected three employees as well as visitors. Disneyland has appealed.

Florida

  • Five contractors were cited for seven workplace safety violations after a fatal pedestrian bridge collapse at the International University campus in Miami and face proposed penalties totaling $86,658. Violations included exposing employees to crushing and fall hazards and allowing multiple employees to connect to an improperly installed lifeline.
  • Inspected as part of Regional Emphasis Program on Falls in Construction, Coastal Roofing, Inc. of Jacksonville, faces $105,283 in proposed penalties for exposing workers to fall and other hazards.

Georgia

  • As a result of a follow-up inspection that was part of a formal settlement, Great Southern Peanut LLC of Leesburg, a peanut processing facility, faces $309,505 in proposed penalties and was placed in the Severe Violator Enforcement Program. Citations included failing to develop and implement procedures for confined space entry, train employees on confined space hazards, reduce compressed air to the required level, and meet recordkeeping requirements.

Michigan

  • Packaging Specialties, Inc. of Romulus faces 17 citations and $144,900 in penalties for repeatedly exposing workers to safety hazards, including failing to train workers to safely operate aerial lifts, and conduct periodic safety inspections for the control of hazardous energy.

Missouri

  • After an employee was killed at the St. Joseph sawmill site, American Walnut Company LLC was cited for two repeated and 14 serious safety violations and faces fines of $199,183. The repeat violations related to failing to protect employees from amputation hazards and keeping walking-working surfaces free of debris.

Nebraska

  • Nebraska Railcar Cleaning Services (NRCS) and its executives are criminally charged after workers’ deaths. At the time of the incident, the company received 30 citations reaching almost $1 million and was placed in the Severe Violator Enforcement Program. They now face a 22-count criminal indictment that they not only failed to implement worker safety standards, but then tried to cover it up during the subsequent inspection. They also are charged with mishandling hazardous wastes removed from rail tanker cars during the cleaning process.

Pennsylvania

  • An administrative law judge of the OSHRC affirmed all workplace safety citations against Pro-Spec Corp., doing business as Pro-Spec Painting, an abrasive blasting and painting company in Easton and Quakertown and assessed $44,536 in penalties.

Virginia

  • Lanford Brothers Company faces five citations and $304,130 in penalties for exposing workers to respirable crystalline silica hazards while using jackhammers to remove concrete from bridge piers.

For more information.

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