OSHA watch

Recent fines and awards

Florida

  • Cathcart Construction Company-Florida LLC was cited for exposing employees to excavation hazards at worksites in Orlando and Winter Garden. The general contractor faces $303,611 in penalties.
  • Skanska-Granite-Lane, a joint venture operating as SGL Constructors, was cited for exposing employees to safety hazards at the I-4 Ultimate Improvement Project worksite in Orlando. One worker suffered fatal injuries and another was hospitalized. The contractor faces $53,976 in penalties.

Georgia

  • Creative Multicare Inc., a carpet restoration, plumbing, and resurfacing contractor based in Stockbridge, was cited for exposing employees to safety and health hazards after a fatal incident at a worksite in Perry. The company faces $183,127 in penalties for failure to properly manage the handling and labeling of hazardous chemicals.
  • Martin-Pinero CPM LLC, a construction contractor based in Atlanta, was cited for exposing employees to fall hazards after a fatal incident at a highway construction project in Atlanta. The company faces $170,020 in penalties. The inspection was conducted in conjunction with the Regional Emphasis Program on Falls in Construction.

Illinois

  • Three employers, Northwestern University, Hill Mechanical Corp., and National Heat & Power Corp., were cited for exposing workers to permit-required confined space hazards associated with underground steam vaults. Northwestern University was cited for failing to provide required information to contractors and coordinate activities, identify and evaluate high-pressure steam as a hazard, isolate steam energy, perform air monitoring, provide required signage, complete entry permits, evaluate their confined space hazard program and ensure the ability to rescue employees from a confined space. It faces penalties of $105,835. Hill Mechanical Corp. was cited for failing to obtain information from the host employer and coordinate activities, identify and evaluate hazards of the space, isolate steam energy, perform air monitoring, complete entry permits, provide required confined space training and ensure the ability to rescue employees from a confined space. The company faces penalties of $105,835. National Heat & Power Corp., the contractor brought in to complete the repairs, faces penalties of $24,292 for four serious violations involving failing to obtain information from the host employer, adequately isolate steam energy, provide required confined space training, and complete entry permits.

Missouri

  • Skinner Tank Company, based in Yale, Oklahoma, was cited for lack of fall protection after an employee constructing a storage tank suffered fatal injuries in a 50-foot fall at a Missouri agricultural facility. The company faces $415,204 in penalties for two willful and 11 serious safety violations and has been placed in OSHA’s Severe Violator Enforcement Program.

Virginia

  • A $5,000 citation against a naval contractor that trains sea lions to detect trespassers was upheld after the Occupational Safety and Health Review Commission determined that a failure to mitigate drowning hazards led to the death of an employee. The Reston-based Science Applications International Corp was cited under the General Duty Clause.

Wisconsin

  • MODS International Inc., a fabrication company that converts shipping containers into commercial and residential structures, was cited for exposing employees to multiple hazards at their facility in Appleton. The company faces penalties of $216,299 for seven repeat and seven serious safety and health violations. The company is contesting the citations.

For more information.

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

Coronavirus and OSHA: important updates

Backtracks on recordability of COVID- 19

Interim guidance reversed previous guidance that COVID-19 transmission in the workplace would be considered a recordable injury. Under the new guidance, the recordability of COVID-19 for non-frontline employers will be enforced only if there is objective evidence that the case may be work-related without an alternative explanation and the evidence was reasonably evident to the employer.

Employers in areas where there is ongoing community transmission “other than those in the health care industry, emergency response organizations (e.g., emergency medical, firefighting and law enforcement services) and correctional institutions” generally will not be required to record COVID-19 cases because they “may have difficulty making determinations about whether workers who contracted COVID-19 did so due to exposures at work.”

The non-exempt employers must continue to make work-relatedness determinations and record on their 300 logs positive cases of COVID-19 likely to have been acquired on the job that result in death, days away from work, restricted work, or medical treatment beyond first aid.

 

Enforcement relief of many regulatory obligations for employers demonstrating “good faith efforts”

In an April 16 memo area offices and inspectors were given the discretion to assess an employer’s good-faith efforts to comply with standards that require annual or recurring audits, reviews, training or assessments, and take such efforts “into strong consideration” before issuing a citation during the current pandemic. Inspectors are directed to evaluate if employers:

  • Explored all options to comply with applicable standards (e.g., use of virtual training or remote communication strategies)
  • Implemented interim alternative protections, such as engineering or administrative controls
  • Rescheduled required annual activity as quickly as possible

The memo lists examples of situations in which area offices should consider enforcement discretion, including annual audiograms, hazardous waste operations training, construction crane operator certification, and periodic evaluation for respirator use.

 

Guidance for manufacturing sector

Guidance for the manufacturing sector offering strategies to prevent the spread of coronavirus was recently released. The guidance recommends that manufacturing companies stagger shifts, maintain distances of six feet between employees if possible, allow workers to wear masks, and provide training on the proper donning and doffing of personal protective equipment and clothing. Manufacturers are also urged to promote personal hygiene and provide alcohol-based hand rubs of at least 60% alcohol if handwashing access is not available and provide disinfectants and disposable towels for employees to clean work surfaces. The guidance is available in English and Spanish.

 

New safety alerts: retail sector, construction, package delivery workers

new safety alert provides nine tips for employers and workers at pharmacies, supermarkets, big-box stores, and other retail establishments to help reduce the risk of contracting and spreading COVID-19. The guidance is also available in Spanish.

A new safety alert provides guidance to help protect construction workers from exposure to coronavirus. It is available in English and Spanish.

Tips to protect package delivery workers are addressed in a new safety alert. English Spanish

 

Guidance for meatpacking and processing industries

coronavirus-related interim guidance developed with the CDC for meatpacking and meat processing workers and employers, including those involved in beef, pork and poultry operations, has been released. The interim guidance includes information on cleaning of shared meatpacking and processing tools, screening employees for the coronavirus before they enter work facilities, managing workers who are showing symptoms of the coronavirus, implementing appropriate engineering, administrative, and work practice controls, using appropriate personal protective equipment and practicing social distancing at the workplace.

 

Worker exposure risk chart

To help determine workers’ risk level for exposure to COVID-19, a chart of a four-tiered hierarchy based on occupational risk was developed. It shows what measures to take to protect workers based on industry and contact with others. The levels are:

Very high: Health care and morgue workers performing aerosol-generating procedures on or collecting/handling specimens from potentially infectious patients or bodies of individuals known to have, or suspected of having, COVID-19 at the time of death.

High: Health care delivery and support, medical transport, and mortuary workers exposed to confirmed or suspected COVID-19 patients or bodies of individuals known to have, or suspected of having, COVID-19 at the time of death.

Medium: Individuals who may have contact with the general public, including anyone employed in schools, high-population/density work environments, and some high-volume retail settings. This category also includes workers returning from locations with widespread COVID-19 transmission.

Lower (caution): Individuals who have minimal occupational contact with the public and other co-workers.

 

Inspectors prioritizing health facilities over other sites during coronavirus crisis

Recent guidance directs inspectors to focus on inspecting hospitals, nursing homes, laboratories, and other “high-risk” settings that are the subject of complaints by workers. Fatalities and imminent-danger exposures related to the pandemic will take priority for onsite inspections. So many employee complaints have been made that letters requiring a response are no longer sent, but employers are sent a letter notifying them about a complaint and directing them to agency guidance and additional resources on how to address COVID-19 risk. On the other hand, Cal/OSHA and other state plans are sending out traditional letters requesting a response within five working days.

 

Employers reminded of whistleblower protections for COVID-19 complaints

The number of coronavirus-related whistleblower complaints prompted a press release reminding employers they cannot retaliate against workers who report unsafe working conditions. The press release lists forms of retaliation, including firings, demotions, denials of promotion or overtime, and reductions in pay or hours. Reports are that there have been thousands of COVID-19-related inquiries and complaints.

 

Further easing of regulations related to respiratory protection

On April 3, two interim enforcement guidance memos were issued regarding the Respiratory Protection Standard (1910.134) and certain other health standards. The reuse of N95 respirators and the use of expired N95s will be allowed if certain conditions are met.

The second memo allows for the use of filtering facepiece respirators and air-purifying elastomeric respirators certified by other countries or jurisdictions, under certain performance standards. The enforcement guidance applies to all industries, especially workplaces where respiratory protection is impacted by the shortage and health care personnel are exposed to suspected or confirmed COVID-19 patients.

third memo was released on April 24 providing guidance on reusing disposable N95 filtering facepiece respirators (N95 FFRs) that have been decontaminated.

 

Poster aimed at reducing workplace exposure to the coronavirus

A new poster listing steps all workplaces can take to reduce the risk of exposure to coronavirus is available in twelve languages.

 

COVID-19 quick tips videos

Three new animated videos provide quick tips on social distancing, disinfecting workplaces, and industry risk factors to keep workers safe from COVID-19:

Social distancing

Disinfecting workplaces

Industry risk factors

For OSHA updates visit https://www.osha.gov/SLTC/covid-19/ .

 

Cal/OSHA new guidance on COVID-19 in the workplace

Industry-specific guidance and ATD model plans have been released. The industry-specific guidance includes:

As general guidance, Cal/OSHA’s website also includes interim guidelines for general industry.

 

Guidance and resources from state OSHA programs

California

Indiana

Michigan

Minnesota

North Carolina

Tennessee

Virginia

For additional information and resources on Coronavirus, go to the Duncan Financial Group COVID-19 Resource Center Online

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

 

OSHA watch

National Emphasis Program to reduce or eliminate worker exposure to silica extended in Pennsylvania, Delaware, West Virginia, and District of Columbia

An initiative to increase the focus of inspections in maritime, construction, and general industries on identifying, reducing, or eliminating worker exposures to respirable crystalline silica has been launched. The NEP on respirable crystalline silica targets specific industries in each area that are expected to have the highest numbers of workers exposed to silica. It also focuses on enforcement of two new silica standards, one for the general and maritime industries, and one for the construction industry. Compliance assistance is available until May 3, 2020, after which inspections under the NEP will begin.

National Safety Stand-Down to Prevent Falls postponed

The 7th annual National Stand-Down to Prevent Falls in Construction, originally scheduled for May 4-8, 2020, was postponed due to the COVID-19 pandemic. The event will be rescheduled this summer.

National Safety Stand-Down to Prevent Falls webinar

The National Safety Stand-Down to Prevent Falls will conduct an April 16 webinar on fall prevention practices.

Whistleblower protections public meeting

public meeting on May 13 will solicit comments on the whistleblower protection laws. The public will also be able to participate in the meeting by telephone.

Voluntary Protection Programs manual revised

The Policies and Procedures Manual for the Voluntary Protection Programs was recently revised.

Recent fines and awards

Florida

  • Turnkey Construction Planners Inc., based in Melbourne was cited for exposing employees to fall hazards at two worksites in Port Saint Lucie. The roofing contractor faces $114,294 in penalties.

Illinois

  • Monahan Filaments LLC., based in Arcola, was cited for violations of machine safety standards after an employee suffered severe injuries. The manufacturer of synthetic filaments for brushes and brooms faces $258,271 in penalties and was placed in the Severe Violator Enforcement Program (SVEP).

Massachusetts

  • In response to a complaint, Dollar Tree Stores in Boston was cited for exit and storage hazards and faces $523,745 in penalties. The national retailer received two willful and three repeat violations.

Missouri

  • R&R Contracting Services Inc. was cited after an employee suffered fatal injuries when he was crushed by a powered industrial truck at the company’s O’Fallon facility. The portable restroom service provider faces nine serious violations and proposed penalties of $52,626.

Nebraska

  • Interstate Commodities, based in Troy, New York, faces $228,592 in penalties for grain handling violations after an employee was fatally engulfed in a grain bin at the company’s Fremont facility. The company was cited for seven repeat and 10 serious safety and health violations involving hazards associated with grain handling, falls, respiratory protection, powered industrial trucks and electrical safety. It was placed in the SVEP.

Pennsylvania

  • In response to a complaint, Dollar Tree Stores in Bethlehem was cited for exit and storage hazards and faces $296,861 in penalties.

Wisconsin

  • Dollar Tree Stores was cited for exit, storage, and fire hazards at its Marinette location. The national discount retailer faces $477,089 in penalties.

For additional information.


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

Coronavirus: Workers’ Compensation and OSHA considerations

Worker’s Compensation

Compensability

Occupational disease law is written with the intent to cover diseases that arise in the course and scope of employment and have an exposure that is elevated from the exposure of the general public. An ailment does not become an occupational disease simply because it is contracted on the employer’s premises. A common disease that the public is exposed to is generally not covered under the occupational disease category, such as the flu and common colds. Furthermore, the National Council on Compensation Insurance (NCCI) notes that that many state workers’ comp statutes exclude “ordinary diseases of life.”

Therefore, in most situations, it would be difficult to prove that coronavirus resulted from a risk at work, as community spread has made the risk prevalent outside of the workplace and the incubation period can be anywhere from 2 to 14 days.

However, there are exceptions, notably healthcare providers and first responders caring for patients diagnosed with the coronavirus. Here employees are at a substantially greater risk of contracting coronavirus than the risk experienced by the general public.

Washington state, which operates a monopoly workers’ comp system, issued a directive providing workers’ compensation coverage for health care workers and first responders who are quarantined by a physician or public health officer. However, it also noted in most cases, exposure and/or contraction of COVID-19 is not considered to be an allowable, work-related condition, and will be reviewed on a case-by-case basis. North Dakota has issued a similar directive. Other states may follow suit, so it is important to stay up-to-date.

Of course, claims will still be filed and will be determined on a case-by-case basis. Claim adjusters will look to see if employees can prove that they contracted the virus after an exposure at work, the exposure was unique to the workplace, there are no alternative means of exposure, and they can provide medical evidence to support the claim.

The Workers’ Compensation Insurance Rating Bureau of California is partnering with other work comp organizations around the country to create unique codes to identify COVID-19 claims. The new codes will allow the costs of the claims to be tracked, measured, and properly used for pure premium ratemaking and experience rating.

On-site employees: manufacturers, construction, retail

Industries such as manufacturing, construction, and retail face the reality that employees must work onsite. The challenge to keep workers safe in these environments becomes more daunting every day. It’s important to recognize that the uncertainty created by the spread of the virus is a major distraction and distractions can lead to accidents. Safety efforts must adapt to current realities and be the number one priority.

The CDC recommends that employers “actively encourage sick employees to stay home.” To identify high-risk employees, some employers have instituted temperature screening upon entering work, which requires training and protecting the worker who is taking temperatures.

Others have encouraged self-identification and relaxed paid leave policies to urge those with symptoms or those who live with individuals with symptoms to remain at home. Responsible employers have trained managers and supervisors to identify symptoms of possible infection in coworkers and encourage reporting, as well as train employees on responsible behavior, such as handwashing, social distancing, sharing cups, utensils, etc.

Staggering shifts, break and lunch times, adding night or weekend shifts to help with family obligations are other actions employers are taking to keep workers safe. Other steps include installing barriers or creating “zones” to limit employee interaction, cross-training employees, restricting visitors, increasing frequency of sanitizing effort, providing sanitary wipes throughout the facility, and urging employees to follow CDC guidance. Identifying key personnel and creating schedules to isolate them can help keep the facility open.

For construction, the Center for Construction Research and Training (CPWR) has released guidance and offered resources for employees and employers on safety protocols in both English and Spanish.

In retail, it’s important to recognize that even “essential” shopping can endanger low-paid workers who are not trained in pandemic preparedness. Grocery stores are ramping up efforts at disease control, cleaning surfaces and carts more aggressively, providing hand sanitizers, encouraging frequent handwashing, and limiting occupancy and controlling access to checkout lines to ensure social distancing. Some have lifted restrictions on wearing gloves and masks, reduced operating hours, installed sneeze guard barriers at checkout, and increased pay. Even with these efforts, the stores are often busy and understaffed, and employees feel anxious and vulnerable. Educating employees on how to stay safe and letting them know they are valued goes a long way.

The CDC has published an Interim Guidance for Businesses and Employers to Plan and Respond to Coronavirus Disease 2019 (COVID-19) with helpful information on what to do if there is a confirmed or suspected case in the workplace.

Telecommuting

The increase in telecommuting opens up another exposure for employers who are not used to having their workers work from home. Even those telecommuters who already know the drill about ensuring safe workspaces are facing different situations with children at home. Everyone is in an environment that is emotionally stressful. It’s good to periodically remind workers that they shouldn’t be sitting on a soft couch working in an awkward posture all day…that they need to be focused on proper positioning of back, wrist, and feet, and that they shouldn’t be plugging in power cords wherever they can and creating trip hazards. Tips on maintaining safe home workplaces are helpful.

Another issue facing employers is how to handle requests by employees for equipment such as an office chair to be delivered to their home. The need to set up, properly train the employee on how to adjust the chair, consistent treatment of all employees, and what to do with the equipment when the worker returns to the office should be considered.

Further, if faced with telecommuting requests by employees with concerns of potential exposure when an office is still open or when offices reopen, it’s important to assess whether such concern is reasonable before refusing this accommodation.

Existing workers’ compensation claims

Access to non-urgent medical care has been greatly affected during this crisis. Expect delays and longer recovery periods. Staying in touch with the injured employee and offering support is critical. Many workers compensation courts have suspended hearings and in-person meetings, while others are allowing virtual or telephone hearing options.

One positive note is the increased use of telemedicine, which the industry has been slow to adopt. Texas relaxed its rules regarding telemedicine and no longer requires patients to visit a doctor’s office before qualifying for telemedicine services and Ohio relaxed its rules that previously restricted the use of the home for video-based screening.

Privacy

Employers must be vigilant in complying with the various labor and employment laws implicated by the virus and be extremely cautious about sharing any health information related to 2019-nCoV diagnosis. Employers can notify managers, supervisors, and other employees who may have been exposed to an employee who contracted the virus but should not reveal the name of the employee, and discourage gossiping and presumptions.

Remind employees of applicable policies and procedures for reporting concerns and requesting leaves of absence and other accommodations. Train supervisors and managers on how to respond to such requests. Everyone should refrain from offering medical opinions, but can encourage employees to speak with their physician, local health department, and to use telemedicine.

If an employer opts to take temperatures of workers, it is still considered a medical exam and protected by the ADA. Information must be kept private and in a confidential medical file.

Employee relations

This is a time of unprecedented anxiety and worry for everyone. Be patient with employees as they deal with the fear of being “essential” employees exposed to public interaction, learn “social distancing” at a manufacturing or construction site, adjust to working remotely, and worry about their economic future.

The fastest way to alienate employees is not to show respect for their safety. Anything employers can do to calm employees will help keep the operation going and build loyalty.

Set clear, reasonable guidelines and expectations. Allow employees to openly discuss their questions and concerns without fear of reprisal. Provide daily guidance on key topics like self-care and staying safe. Tell the workforce what the company is doing, how you’re doing it, and what is likely to happen next.

Employees want and need to feel valued and look to their executive team for confidence that there is a way forward. It will take their commitment and engagement to see the company through the crisis. The employer’s actions now will leave an indelible mark on the attitude, retention, and loyalty of employees.

Suggested resources:

CDC: Interim Guidance for Businesses and Employers to Plan and Respond to Coronavirus Disease 2019 (COVID-19)

Bain : A CEO Plan for Coronavirus: Actions to Take Now

Gallup: COVID-19: What Employees Need From Leaders Right Now

National Institutes of Health: COVID-19 website featuring health and safety resources for workers who may be at risk of exposure to COVID-19.

Center for Construction Research and Training (CPWR): guidance and resources

The Scary Times Success Manual

OSHA

Dedicated webpage and guidance document

OSHA issued guidance on preparing workplaces for COVID-19, in both English and Spanish. It divides jobs into four risk exposure levels – very high, high, medium, and lower – and specifies what employers should do to protect workers based on their level of exposure. It also suggests employers review their procedures regarding contractors, visitors, and other third parties who access the workplace.

It also has a webpage providing information on hazard recognition, medical information, control and prevention, and additional resources.

Applicable standards

Although OSHA does not have a standard that covers the coronavirus (an infectious disease rule has languished for ten years), its webpage on COVID-19, notes that the General Duty Clause applies. This is a catchall the agency uses to cite employers where there is no standard that applies to the particular hazard. It requires employers to furnish to each worker “employment and a place of employment, which are free from recognized hazards that are causing or are likely to cause death or serious physical harm.” Failure to take steps to protect employees in accordance with OSHA and CDC guidelines can result in enforcement action.

The Personal Protective Equipment (PPE) standard, 29 CFR 1910.132, (in general industry), which requires using gloves, eye and face protection, and respiratory protection also comes into play as does Respiratory Protection, 29 CFR 1910.134.

In California, 019-nCoV is covered by Cal/OSHA’s Aerosol Transmissible Diseases (ATD) standard, which requires employers to protect workers from diseases and pathogens transmitted by aerosols and droplets and the agency recently issued guidance on the requirements to protect workers.

 

Recording and reporting requirements

Recording

Although OSHA’s recordkeeping rule exempts common colds and flu, it has explicitly stated that COVID-19 is a recordable illness when a worker is infected on the job. According to OSHA’s website COVID-19 can be a recordable illness if a worker is infected as a result of performing their work-related duties. However, employers are only responsible for recording cases of COVID-19 if all of the following are met:

  • The case is a confirmed case of COVID-19
  • The case is work-related, as defined by 29 CFR 1904.5; and
  • The case involves one or more of the general recording criteria set forth in 29 CFR 1904.7 (e.g. medical treatment beyond first-aid, days away from work).

With the exception of health care, it is going to be difficult to connect work-relatedness of individual cases as community spread has set in. It is going to be necessary to determine on a case-by-case basis, whether it is more likely than not that an event or exposure in the workplace caused or contributed to the illness. For example, if an employee diagnosed with coronavirus was in the workplace after exposure, and a cluster of employees he/she was in close contact came down with coronavirus, it may be work-related because if an exposure in the work environment caused or contributed to the illness, there is a presumption the illness is work related.

An employee reporting an illness to the employer and/or asserting it was contracted in the workplace does not make the case recordable. It is the employer’s responsibility to determine work-relatedness and to document the decision. Further, if the exposure occurred while the employee was working outside the U.S. it is not recordable. “Injuries and illnesses which occur while the employee is traveling in places where OSHA does not have jurisdiction do not need to be recorded on the company OSHA log.”

Reporting

The existing criteria for reporting severe injuries apply to COVID-19 cases, including work-relatedness. Employers must report any hospitalization of a worker if the employee is admitted to the in-patient service for treatment within 24 hours. Given the latency/incubation period between exposure/contraction of the virus, and the time symptoms appear or are significant enough to result in an in-patient hospitalization, it’s unlikely many hospitalization reports will be filed.

Employees must report a fatality to OSHA when it is work related, a confirmed diagnosis, and the employee succumbed to the illness within 30 days of the exposure that resulted in the COVID-19 diagnosis.

 

Relief for healthcare respiratory protection annual fit-testing

In an effort to preserve the supply of N95 filtering facepiece respirators during the COVID-19 pandemic, OSHA temporarily suspended its requirement for annual respirator fit testing in the health care industry. The temporary enforcement guidance will remain in place until further notice.

Voluntary use respirators

In many industries, employees are asking to wear respirators/masks. If employers permit “voluntary use” (not required by regulations), the employer still must meet certain obligations set forth by OSHA. Employers are also permitted to decline to allow employees voluntary use respirators including N95 masks, if a respirator is not required because of exposures levels in the workplace.

Telecommuting

Regulation on telecommuting is lax and the due diligence is up to employers. OSHA has repeatedly said that it will not investigate the safety of home offices.

However, there is clear guidance on recording injuries while working from home in regulation 29 C.F.R. § 1904.5(b)(7) : “How do I decide if a case is work-related when the employee is working at home? Injuries and illnesses that occur while an employee is working at home, including work in a home office, will be considered work-related if the injury or illness occurs while the employee is performing work for pay or compensation in the home, and the injury or illness is directly related to the performance of work rather than to the general home environment or setting.”

The regulation gives a few examples.

  • “If an employee drops a box of work documents and injures his or her foot, the case is considered work-related.”
  • “If an employee is injured because he or she trips on the family dog while rushing to answer a work phone call, the case is not considered work-related.”

Meeting regulatory deadlines

While it is anticipated that OSHA will cut some slack on enforcing regulatory deadlines, such as annual LOTO inspections and three-year PS audits, it’s important to document why the deadline was missed and undertake interim or alternative measures where feasible. Simply saying, there was a pandemic is not enough.

Retaliation when employees refuse to work

Co-workers of sick employees who refuse to work may be protected by OSHA’s anti-retaliation provisions. The worker must believe in good faith that there is an imminent danger in the workplace and insufficient time to eliminate the danger through regulatory enforcement. Experts suggest that when employees are being rotated into different positions and asked to do things they normally do not do with minimal training or when a group of employees feels their safety is threatened, the risk of successful retaliation suits is higher.

If the employer is following all recommended CDC guidance, communicating the practices may ease the anxiety. However, if the employee still refuses to work, termination could be a risk, if the fear is reasonable.

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

OSHA watch

NEP to reduce or eliminate worker exposure to silica revised

Effective Feb. 4, the National Emphasis Program (NEP) on respirable crystalline silica for general industry, maritime and construction to “identify and reduce or eliminate” silica-related hazards was revised.

Significant changes include:

  • Enforcement of the standards for RCS, promulgated in 2016. One standard covers general industry and maritime, and the other covers construction. Both standards set a permissible exposure limit (PEL) for RCS of 50 micrograms per cubic meter (µg/m3) as an 8-hour time-weighted average (TWA). The former TWA PELs for respirable quartz silica were calculated based on silica content and were approximately equivalent to 100 µg/m3 for general industry and 250 µg/m3 for construction and shipyards (81 FR at 16294, March 25, 2016).
  • Updated list of target industries, listed by North American Industry Classification System (NAICS) codes.
  • For inspection procedures, compliance safety and health officers (CSHOs) are referred to current enforcement guidance for the Respirable Crystalline Silica Standards.
  • State Plan participation in this NEP has been made mandatory.
  • Area and Regional Offices shall comply with this NEP, but they are not required to develop and implement corresponding Local Emphasis Programs (LEPs) or Regional Emphasis Programs (REPs).
  • Area Offices will conduct outreach programs three months prior to initiating NEP-related RCS inspections.
  • Area Offices are no longer required to send abatement verification to the National Office.

Low hazards industry list updated

The list of low-hazard industries used to determine whether small-business employers are exempt from programmed safety inspections has been updated. Employers in these industries that employ 10 or fewer employees are exempt from programmed safety inspections. The appropriations language contains exceptions for inspections stemming from fatalities, the hospitalizations of two or more employees, imminent danger situations, employee complaints, and health hazards, among other situations.

National Emphasis Program (NEP) on Amputation extended to manufacturing industries in Pennsylvania, Delaware and West Virginia

The NEP on amputations will target industrial and manufacturing workplaces in Pennsylvania, Delaware, and West Virginia where it’s been determined that unguarded or improperly guarded machinery and equipment played a role in employee injuries. A concerted education and prevention effort will also be made to raise awareness. NEP enforcement activities will begin after March 10, 2020, and will remain in effect until the program is cancelled.

New hazard bulletin: grease traps

The new bulletin provides information on how to properly cover grease traps to prevent workers from tripping or falling into them.

Technical corrections and amendments to 27 standards

According to a final rule published in the Feb. 18 Federal Register, the corrections are to 29 CFR 1904 (recording and reporting occupational injuries and illnesses), 1910 (general industry), 1915 and 1918 (maritime), and 1926 (construction).

National stand-up for grain safety week

The National Stand-Up for Grain Safety Week will take place April 13-20.

New webpage to observe 50th anniversary

A new webpage marks the 50th anniversary of the Occupational Safety and Health Act of 1970. Visit www.osha.gov/osha50 to find 50th anniversary events.

Cal OSHA Guidance on requirements to protect health care workers from 2019 novel coronavirus

The guidance covers the safety requirements when providing care for suspected or confirmed patients of the respiratory disease or when handling pathogens in laboratory settings in California.

Cal OSHA – Employee access to employer’s Injury and Illness Prevention Plan

The Occupational Safety and Health Standards Board (“Standards Board”) approved a rule allowing employee access to their employer’s Injury and Illness Prevention Plan within five days of a request, effective January 1, 2021.

 

Recent fines and awards

Florida

  • The U.S. District Court for the Middle District, Fort Myers Division, sentenced Stalin Rene Barahona, former owner of the now-dissolved SB Framing Services Inc. in Naples, to 30 days in prison. Barahona pleaded guilty to one count of willfully violating federal fall protection standards.

Georgia

  • Pearson Farms LLC was cited for safety violations after an employee suffered fatal injuries at the farm’s post-harvest operations facility in Fort Valley. The employee, who was performing maintenance on a conveyor system, was caught between the load on a forklift and a metal railing. The farm faces $128,004 in penalties.
  • Garick LLC, operating as Smith Garden Products, was cited for exposing employees to safety hazards at the Cumming facility. The manufacturer of specialty mulch products faces $148,867 in penalties. The inspection was conducted in accordance with the National Emphasis Program on Amputations and the Regional Emphasis Program for Powered Industrial Trucks.

Michigan

  • Dearborn Heights School District violated whistleblower statutes by unjustly disciplining, publicly discrediting, and terminating an employee who reported unsafe working conditions to federal and state agencies. The school district was ordered to reinstate the employee and pay a total of $102,905.78 in back wages, damages and other compensation.

Missouri

  • Royal Oak Enterprises was cited for exposing employees to multiple safety and health hazards at company facilities in Branson and Summersville. The charcoal manufacturer faces $339,702 in penalties.

New York

  • Nonni’s Foods LLC was cited for exposing employees to falls and other hazards at the Ferndale facility. Inspected after an employee fell and was hospitalized, inspectors discovered that the employer instructed employees to retrieve stored material by standing on the forks of a forklift that elevated them to a storage area atop a break room, which did not have guardrails. The manufacturer of premium cookies faces $221,257 in penalties.

Pennsylvania

  • Cleveland Brothers Inc., doing business as CB HYMAC, was cited for exposing workers to hexavalent chromium fumes and other safety hazards at the company’s shop in Camp Hill. The company, which provides hydraulic service and repair, machining and chroming services, was cited for one willful violation and 18 serious and two other-than-serious citations, totaling $280,874 in penalties.
  • CLF Construction Inc. and Toll Brothers Inc. were cited for exposing employees to fall hazards after a CLF employee suffered fatal injuries in a fall at a worksite in Media. Proposed penalties are $170,560 for Philadelphia-based subcontractor CLF Construction, and $74,217 for Horsham-based general contractor Toll Brothers.

For additional information.

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

OSHA watch

Citation penalties increase for inflation

Effective January 15, the DOL increased civil penalty amounts for violations to adjust for inflation by 1.01764%. Here are the new maximum penalties:

Type of Violation Penalty Minimum Penalty Maximum
Serious $964 per violation $13,494 per violation
Other-than-Serious $0 per violation $13,494 per violation
Willful or Repeated $9,639 per violation $134,937 per violation
Posting Requirements $0 per violation $13,494 per violation
Failure to Abate N/A $13,494 per day unabated beyond the abatement date (generally limited to 30 days)

Coronavirus resource

An online resource on a new coronavirus outbreak that includes a link to the Centers for Disease Control and Prevention interim guidance, quick facts about the outbreak, and information on preventing exposures is available.

Letter of interpretation addresses headphones in workplace

Although there is no specific regulation that prohibits the use of headphones on a construction site or any other workplace, there are permissible noise exposure limits under the Hearing Protection standard and employers must protect employees subject to sound levels exceeding these limits. While the letter acknowledges that some manufacturers promote their products as “OSHA-approved” or “OSHA-compliant,” these are misleading as the agency does not register, certify, approve, or otherwise endorse commercial or private sector entities, products, or services. It further cautions that the use of headphones may produce a safety hazard by masking environmental sounds that need to be heard and it is the employer’s responsibility to protect workers from such hazards.

Earthquake safety resource

A new Earthquake Hazard Alert focuses on keeping emergency response workers safe.

Recent fines and awards

California

  • In Nolte Sheet Metal Inc. v. Occupational Safety and Health Appeals Board, the Court of Appeals, 5th District in Fresno unanimously affirmed citations for four serious violations, although the file prepared by the Cal/OSHA office on the day of the inspection was later taken during a car burglary. The company had argued it did not consent to an inspection, the lack of the original inspection file amounted to spoliation and denied the company due process, and the violations were improperly classified as serious.

Georgia

  • In Packers Sanitation Services Inc. v. Occupational Safety and Health Review Commission, the 11th U.S. Circuit Court of Appeals in Atlanta unanimously upheld an administrative law judge’s finding that the company failed to protect its employees from dangerous machinery.

Florida

  • The U.S. Court of Appeals for the 11th Circuit has found a Jacksonville-based roofing contractor, Travis Slaughter owner of Great White Construction Inc. and Florida Roofing Experts Inc, in contempt for failing to pay $2,202,049 in penalties. The court ordered the companies and Slaughter to pay the outstanding penalties of $2,202,049 plus interest and fees, and required them to certify that they had corrected the violations within 10 days of the court’s order. If the companies and Slaughter fail to comply, they face coercive sanctions, including incarceration and other relief the court deems proper.
  • In addition to the above, Florida Roofing Experts Inc. was cited for failing to protect workers from falls at two work sites in Fleming Island and one in Middleburg. Roofing Experts Inc. faces penalties totaling $1,007,717.
  • Inspected under the Regional Emphasis Program for Falls in Construction, CJM Roofing Inc., based in West Palm, was cited for exposing employees to fall and other hazards at three residential worksites in Royal Palm Beach and Port St. Lucie. The contractor faces penalties totaling $291,724.
  • An employee of Shooting Gallery Range Inc. in Orlando will receive $30,000 in back pay and compensatory damages under a whistleblower settlement. The employee alleged he was fired for reporting safety concerns relating to lead exposure.

Illinois

  • Goose Lake Construction Inc. was cited after an employee suffered serious injuries when an unprotected trench collapsed, burying him up to his waist at a Glencoe, worksite. Proposed penalties are $233,377.

Massachusetts

  • National retailer, Target Corp., was cited for emergency exit access hazards at stores in Danvers and Framingham and faces a total of $227,304 in penalties.

Pennsylvania

  • Webb Contractor Corp. was cited for exposing employees to fall hazards at three separate worksites in the Lehigh Valley area. Inspected after a compliance officer observed employees performing residential roofing work without protection, the roofing contractor, based in Bala Cynwyd, faces $605,371 in penalties.
  • Metarko Excavating LLC was cited for exposing employees to trenching hazards at a Cranberry Township worksite. The company faces $59,311 in penalties.
  • Philadelphia Energy Solutions was cited for serious violations of safety and health hazards related to process safety management (PSM) following a fire and subsequent explosions at the company’s Girard Point Refinery Complex in Philadelphia. The company faces $132,600 in penalties.

Wisconsin

  • Milwaukee Valve Company Inc., based in Prairie du Sac, was cited for exposing employees to lead and copper dust at rates higher than the permissible exposure levels. Proposed penalties are $171,628.

For additional information.

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

OSHA: A review and look ahead

Unlike other agencies, such as the EPA, OSHA has not experienced the scale back in enforcement and rulemaking that was expected under the Trump administration. Most attribute this to the fact that there is still no Assistant Secretary of Labor – the longest vacancy ever for the top job at OSHA. Given the present political climate and election year activity, few expect the position to be filled during this final year of President Trump’s first term.

In addition, two vacancies on the Occupational Safety and Health Review Commission (OSHRC) meant that it could not issue decisions since March 28, 2019, because it did not have a quorum. However, it can now resume its work because the Senate confirmed Cynthia Attwood and Amanda Wood Laihow by voice vote Jan. 9, 2020.

What’s been unexpected?

  • No reduction in enforcement emphasis programs. OSHA continues to implement the same number of national (NEP) and regional (REP) emphasis programs as under the Obama administration.
  • Number of inspections has increased. While the number of compliance officers (CSHO) is lower, the number of inspections in 2019 was 33,401, compared to 31,948 in 2016. Although this means the average CSHO’s hours per inspection is lower, it demonstrates a continued commitment to enforcement.
  • Average penalty per serious violation increased dramatically. Under $1,000 in 2009, the average penalty per serious violence reached a high of $5,232 in 2019.*
  • Records for the number of $100,000 penalty cases. In the first year of the Trump administration, there was a record-setting 218 cases with penalties of over $100,000. Last year it was 179 and the three years average is 199 cases, compared to a high of 202 cases in 2011 and an average of 168 cases under the Obama administration.*
  • Little change in the percentage of inspections that result in a serious, willful, or repeat violation. If an employer gets a knock on the door, there’s a very good chance that at least one serious, willful, or repeat violation will be issued. For the past two years, only 28% of inspections closed as “in compliance.” For those that were not in compliance, 87% had at least one serious, willful, or repeat violation in 2017 and 2018 and 86% in 2019.*
  • No let-up on repeat violations. Under the Obama administration, there were significant changes that increased the likelihood of a repeat violation. Workplaces in a corporate family were no longer treated as independent establishments, but as one workplace; in the guidance document, the Federal Operations Manual, the look back period was extended from 3 to 5 years, and there was proactive targeting of past violators for inspections. These practices have not changed. In fact, in 2018 OSHA successfully defended the case, Triumph Construction Corporation v. Secretary of Labor and the U.S. Court of Appeals for the Second Circuit ruled that OSHA is not bound by any look-back period on which to base a repeat violation, a significant expansion of the scope of repeat classifications.

    However, there was one bright spot for employers. In July 2018, the OSHRC issued its decision in Secretary of Labor v. Angelica Textile Services, Inc., providing employers guidance on rebutting repeat violations and clarifying the defenses that employers may have in combating repeat violations. Although the violations involved the same standards of LOTO and confined spaces, the OSHRC found that they were not “substantially similar” because the original violations involved wholesale deficiencies and the company had taken significant abatement actions, and therefore, the conditions differed. OSHA, however, remains committed to repeat violation enforcement, and the case is on appeal to the Second Circuit.

  • Increases in budget. Typically under a Republican administration there are budget cuts to limit enforcement, yet the budget has been increased twice with a 4% increase for FY20, including the enforcement category.
  • Penalties keep rising. Under the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015, the maximum allowable penalty amount for OSHA violations is adjusted annually. The latest increase occurred on Jan. 15, 2020. The maximum penalty for “willful” or “repeat” violations is now $134,937 and the maximum fine for serious, other-than-serious, failure-to-correct (per day), and posting-requirement violations increase is $13,494.
  • Criminal prosecutions continue. Two Department of Justice (DOJ) memos that expanded worker safety criminal prosecutions issued by former AG Sally Yates continue to be enforced by AG William Barr. The first relates to individual accountability for corporate wrongdoing and the second encourages the DOJ to use other environmental laws with more teeth and longer statute of limitations to prosecute worker safety crimes.
  • Site Specific Targeting Plan implemented. In Oct 2018, OSHA initiated the Site-Specific Targeting 2016 inspection program (SST-16) that uses the injury and illness data electronically submitted by employers in 2016. These are tough wall-to-wall inspections. The SST list includes 3,000 establishments and 1,000 inspections have already been conducted.*

Scale back in rules and public shaming

  • The first significant deregulation action was the overturning of the Volks rule by Congress under the Congressional Review Act in 2017. The Volks rule gave OSHA the ability to issue citations to employers for failing to record work-related injuries and illnesses during the 5-year retention period.
  • There also was a scale back of the e-recordkeeping rule, adopted in January 2019, that eliminated the requirement for the largest establishments (250+ employees) to annually submit electronically 300 Logs and 301 Incident Reports. However, the rule did not roll back as many provisions as expected, notably the anti-retaliation provision and public reporting concerns.
  • There has been a slowdown in rulemaking. Some rules moved to “long term actions,” including the Process Safety Management (PSM) Standard, Drug Testing Program and Safety Incentive Rules, and Combustible Dust.
  • There’s been a significant decrease in the number of enforcement press releases issued by OSHA, which can be inflammatory and issued before employers have an opportunity to respond. In 2019, 176 press releases were issued, compared with an average of 463 per year under the Obama administration.* However, the tone hasn’t reverted to the factual reporting of the Bush administration but has remained aggressive.

A look ahead

Inspections

It is projected that the number of inspections will remain steady or rise slightly as the budget includes funding for an additional 26 FTE CSHOs and five FTE whistleblower investigators. Expect to see an aggressive continuation of the SST-16 program that targets non-construction workplaces with 20 or more employees with elevated Days Away Restricted or Transferred (DART) rate, together with a random sample of low-rate establishments and those that did not submit the required electronic data.

The top four priorities are investigation of imminent danger, fatality and catastrophe investigations, response to complaints, and programmed inspections, such as SST and emphasis programs. In Oct. 2019, for the first time since 2015, OSHA changed the weighting system it uses for inspections:

  • Group A, criminal and significant cases (those where fines total more than $180,000): 7 Enforcement Units (EUs)
  • Group B, fatalities and catastrophes (hospitalization, amputation, physical loss of an eye), chemical plant National Emphasis Program, process safety management inspections: 5 EUs
  • Group C, the “fatal four” – caught-in, electrical, fall and struck-by hazards: 3 EUs (expect an uptick in construction industry inspections under this group)
  • Group D, priority hazards: amputation, combustible dust, heat, non-PEL overexposures, workplace violence, permit-required confined space, air contaminants, noise, and site-specific targeting: 2 EUs
  • Group E: everything else: 1 EU.

With these priorities, employers can expect to see more six-figure penalties.

Rulemaking

  • LOTO. Many employers were relieved when the term “unexpected energization” was not removed from the LOTO standard as proposed; however, OSHA left open the door to remove it in the future. In May 2019, the agency issued an RFI seeking input on control circuit type devices and robotics, but to date, OSHA has not provided updates on rulemaking action. There has been an uptick in requests for variances from businesses to consider safe robotic systems as energy-isolating devices. This is an opportunity to change the standard beneficially to reflect technological advances and bears watching.
  • Silica rule. The silica standard requires that medical surveillance must be offered to employees who will be exposed at or above the action level for 30 or more days a year starting on June 23, 2020. Employers with silica present need to document objective data that they do not have exposures at or above the action level under any circumstances.

    It’s anticipated that the recently requested feedback on expanding table 1 of the standard will result in additional engineering and work practice control methods that effectively limit silica exposure for the tasks and equipment currently listed in the table.

  • Beryllium. The compliance date for ancillary provisions in the beryllium standards for construction and shipyards is September 30, 2020. Enforcement of the engineering controls in the general industry standard starts March 10, 2020.
  • Workplace violence. OSHA plans to initiate a Small Business Regulatory Enforcement Fairness Act review panel that will begin an effort to create a standard designed to address workplace violence in the healthcare and social services industries.
  • Other. Other possible new rulemakings will deal with powered industrial trucks, walking-working surfaces rule to clarify its requirements for stair rail systems, cranes and derricks in construction, communication tower safety, welding in construction confined spaces, occupational exposure to beryllium and beryllium compounds in construction and shipyard sectors, and updates to the Hazard Communication Standard.

*Conn Maciel Carey webinar, Annual OSHA Update: 2019 in Review and 2020 Forecast

Note: The information above applies to OSHA in federally mandated states. If you are located in a state where a state agency enforces the OSH Act, the information may differ.

 

OSHA watch

Inspections increase in FY 2019

In FY 2019, which ended September 30, 33,401 inspections were conducted. This is more inspections than in each of the previous 3 years – 32,023 in FY 2018, 32,408 in FY 2017, and 31,948 in FY 2016. The agency also provided a record 1,392,611 workers with training on safety and health requirements through its various education programs.

CIC certifications no longer accepted

Certifications issued by Sanford, Florida-based Crane Institute of America Certification LLC (CIC) for crane operators engaged in construction activities are no longer valid because the CIC is no longer considered a nationally recognized accrediting agency. Employers will not be cited for work performed by crane operators holding CIC-issued certifications obtained before Dec. 2, 2019, if those crane operators acquired the certification with the good faith belief that it met government standards. However, CIC certifications or re-certifications issued on or after Dec. 2, 2019 are not acceptable.

Minor corrections and clarifications to Walking-Working Surfaces regulations published

notice published in the Federal Register corrects minor errors and clarifies requirements in the Walking-Working Surfaces and Personal Protective Equipment standards.

Update to NEP on amputation hazards in manufacturing

Updated guidance was issued for Compliance Safety and Health Officers conducting inspections in manufacturing facilities that could potentially have incidents involving amputations. There is a new method for targeting industries that involves using amputation reports submitted by employers as well as Bureau of Labor Statistics (BLS) incident and amputation rate data. The 75 NAICS codes covered under the National Emphasis Program (NEP) can be found in Appendix B of the compliance directive.

There will be a 90-day outreach program offered to employees.

Recent fines and awards

Florida

  • Garabar Inc., based in Lake Worth, was cited for exposing employees to fall and eye hazards at a worksite in Royal Palm Beach. The roofing contractor faces $64,974 in penalties. The inspection was conducted under the REP for Falls in Construction.
  • Action Roofing Services Inc., based in Pompano Beach, was cited for exposing employees to fall hazards at Palm Beach Gardens and Port Saint Lucie worksites. Inspected under the REP for Falls in Construction, the roofing contractor faces $146,280 in penalties.

Georgia

  • Kittrich Corp., operating as Avenger Products LLC, was cited for exposing employees to amputation, fire, and electrical hazards at the company’s Gainesville facility. The pesticide and agricultural chemical manufacturer faces $90,801 in penalties for lockout/tagout violations, improper storage of chemicals, failure to update and give employees access to safety data sheets, and more.
  • Wright Metal Products Crates LLC, based in South Bend, Indiana, and operating as WMP Crates was cited for exposing employees to amputation, chemical and other safety hazards at a worksite in Lavonia. Inspected under the NEP on Amputations and the REP for Powered Industrial Trucks, the company faces $195,034 in penalties.
  • Mavis Southeast LLC, operating as Mavis Discount Tire, was cited for exposing employees to fall, struck-by and other hazards at the company’s distribution facility in Buford and faces $191,895 in penalties.

Massachusetts

  • United Parcel Service Inc. was cited for exposing employees to multiple hazards including exit access, fire, and electrical at the shipping and delivery facility in Vineyard Haven. The company faces $431,517 in penalties for four repeated and seven serious safety violations.

Missouri

  • Martin Davila, operating as Davila Construction, was cited for exposing employees to fall hazards at job sites in Wentzville, Grover, and St. Louis. The residential roofing company faces $205,098 in proposed penalties.

New York

  • Frazer & Jones Company Inc. was cited for 33 workplace health and safety violations at the manufacturer’s Solvay iron foundry. The company faces $460,316 in penalties for multiple violations, including exposing employees to crystalline silica, iron oxide, combustible dust, falls, struck-by and caught-between hazards, unsafe work floors and walking surfaces, inadequate respiratory protection and more.
  • A whistleblower investigation found that Bouchard Transportation Company Inc., B. No. 272 Corp, a petroleum barge company based in Melville, and its officers violated the whistleblower protection provisions of the Seaman’s Protection Act (SPA) when it retaliated against a seaman who cooperated with U.S. Coast Guard (USCG).

Pennsylvania

  • Dana Railcare, based in Wilmington, Delaware, was cited for confined space hazards after an employee asphyxiated while servicing a rail car containing crude oil sludge in Pittston. The railcar service provider faces $551,226 in proposed penalties and was placed in the Severe Violator Enforcement Program.

Wisconsin

  • An administrative law judge of the OSHRC affirmed a citation of $2,800 against Guaranteed Home Improvements LLC after a worker was seriously injured in a ladder fall for using the ladder in icy and slippery conditions and failing to secure it to prevent accidental displacement. There was, however, an issue of fact regarding the side rails of the ladder, and the second citation of $2,884 was vacated.

For additional information.

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

Watch out for 20 costly workers’ comp mistakes in 2020: Part Two (11-20)

Part 2

For many employers, workers’ comp was a bright spot in 2019. Rates were low, workplaces continue to be safer, and the industry made significant strides in controlling opioids. Yet, there are unresolved issues and persistent trends that can spell trouble for complacent employers in 2020.

As employers continue to grapple with long-term labor shortages, it’s important to be mindful that workers’ comp cannot be separated from employee retention and engagement. It’s a core business practice of comprehensive risk management that protects your most valuable asset – your employees.

The order of the following listing does not reflect importance and some may not apply to your workplace. We hope you will use the list to establish your priorities:

  1. Not updating job descriptionsJob descriptions are critical in the recruitment and hiring process, promote greater accountability, enable medical providers and employers to work together in recovery at work, and provide protection in litigation complaints under a host of laws, including the ADA and FMLA. Don’t underestimate the importance of reviewing job descriptions as an integral part of work processes.
  2. Not adapting training to the generational span in the workforceToday, organizations face the challenge of motivating, training, and engaging individuals that span from Gen Z (born after 1997) to Baby Boomers (born after 1945). Companies must recognize the different skill gaps, communication styles, and expectations and find creative ways to reach all generations. While much is written about adapting the workplace to the declining physical abilities of an aging workforce, Gen Z, which is expected to represent 20% of the workforce in 2020, has only recently gotten attention.

    Gen Z grew up immersed in technology and constant interaction, multitasks across five screens on average, freely expresses themselves online, is visually oriented, and has a very short attention span. Many do not have hands-on industrial and mechanical experience, making concepts such as lock-out tagout hard to grasp. Expect the trend of personalized and microlearning to continue in 2020.

  3. Failing to foster mental health resilienceMuch of the legislative activity for presumptive laws is focused on public safety personnel, but there is movement to extend it to other employees such as nurses, teachers, private company EMTs or others on the front lines in crises. There has also been an uptick in workers’ compensation claims for post-traumatic stress disorder following shootings and other violent incidents along with claims for extreme stress. These are complicated and the state laws for coverage vary greatly, although most are limited. Even when the injuries are not deemed compensable, mental health issues can adversely affect recovery.

    These factors, coupled with an increase in workplace suicides, mean that employers cannot ignore the mental health of their employees.

  4. Having cybersecurity myopiaWhile most people think of data and information when they think of cybersecurity, it also can involve safety risks. As operations become more digital and connectivity increases, IoT networks become more vulnerable. Cyber invasions and infections can be used to create havoc or cripple essential equipment for financial gain. Hackers may be insiders or outsiders or the issue may be worker errors.
  5. Overlooking heat stress hazardsWith rising ambient temperatures, 18 of the last 19 years have been the hottest on record according to NASA. The problem is not limited to the Sun Belt states. OSHA recently fined a utility-pole service provider in Nebraska for a heat-related death. Heat stress poses a serious health hazard to workers and also increases safety risks.
  6. Not evaluating telemedicineThe use of telemedicine has been slow to take hold in workers’ comp, but some employers have used it successfully to speed access to care, improve patient compliance, and reduce costs. It’s being used effectively for employees working in remote areas, integrated with the nurse triage process, particularly for minor injuries, and follow up care.
  7. Having a claims denial mindsetDenied claims often lead to higher medical costs and litigation, as studies show about 67% of initial denials are approved. When the claim is legitimate and the claim is denied, it leads to bad feelings and low morale. If you suspect fraud, strongly present the case to the adjuster. But denying claims to lower costs is going to backfire.
  8. Hiring undocumented workersThe national debate on immigration has left undocumented workers in the precarious position of deciding whether to pursue medical care and benefits at the risk of arrest and deportation. While employing undocumented workers is illegal, they represent a good percentage of the workforce in construction, agriculture, and hospitality. In some cases, they are knowingly hired and in others, they have presented false documentation. The statutes vary by state, but many states cover workers compensation for undocumented workers.

    It makes good business sense to validate legal status through E-Verify at the start of employment.

  9. Not staying abreast of legislative and regulatory changesIn addition to the items identified above, drug formularies, medical treatment guidelines, opioids, and Medicare Set Asides regulations will significantly impact workers’ comp. Challenges to the constitutionality of the ACA and single-payer healthcare also bear watching.
  10. Not planning for the changing nature of workThe year 2020 begins a new decade destined to see humans and machines working as integrated teams, with the Fourth Industrial revolution bringing technologies that blur the lines between the physical, digital and biological spheres across all sectors. Retail had more injuries than manufacturing in 2018. Hazards from employee interactions with motorized equipment like autonomous forklifts and robots, high-stress holiday hours, slips and falls, and overexertion have all contributed to the increase.

    Companies are struggling to implement safety protocols that match the pace of automation and protect employee privacy. Drones, wearables, and apps continue to gain traction in workplace safety, but cost, privacy, understanding the proper use and how to analyze the data remain barriers, particularly for smaller employers.

    Further, this tectonic shift has implications for training and education as workers need new skills to adapt to their changing roles and responsibilities. Lifelong learning will become a primary driver for employee success and employees will seek employers that provide such opportunities. It’s got to be all about positioning for the future.

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

Watch out for 20 costly workers’ comp mistakes in 2020: Part One (1 – 10)

For many employers, workers’ comp was a bright spot in 2019. Rates were low, workplaces continue to be safer, and the industry made significant strides in controlling opioids. Yet, there are unresolved issues and persistent trends that can spell trouble for complacent employers in 2020.

As employers continue to grapple with long-term labor shortages, it’s important to be mindful that workers’ comp cannot be separated from employee retention and engagement. It’s a core business practice of comprehensive risk management that protects your most valuable asset – your employees.

The order of the following listing does not reflect importance and some may not apply to your workplace. We hope you will use the list to establish your priorities:

  1. Not taking a holistic view of injured employeesRegardless of the size or type of claim, there’s been an overarching shift in treating injured employees as consumers, rather than claimants. This means not only advocating for them and giving them support and a voice in handling claims, but also recognizing the social and economic factors that affect recovery, and the psychology of pain. Taking the time to understand the needs of the individual employee both improves claim outcomes and bolsters employee morale.
  2. Relaxing claims monitoringWhen claims are down, it’s easy to divert attention elsewhere and leave the claim to the adjuster. Yet, three to five percent of claims drive 50 to 60 percent of the cost and it doesn’t take a catastrophic injury to create a complex, costly claim. Delayed recovery, which can be caused by co-morbidities, psychological or family problems, employment issues, attorney involvement, or prescription abuse increases the duration and cost of a claim. Early identification of these potential high-cost claims reduces costs.

    Also, when legacy claims linger on autopilot, by default, the employer commits to costly ongoing medical care that often involves opioids. While the industry has done a good job of controlling opioid prescribing for new claims, regular intervention is necessary for older claims to accelerate settlements and improve pain management.

  3. Not recognizing marijuana is here to stayThe continuing trend of states legalizing marijuana for both medical and recreational use in spite of the federal ban has made it one of the top challenges in maintaining a safe workplace. Staying abreast of evolving laws and cases, as well as a clearly defined policy on how marijuana will be addressed in the workplace, are necessary to ensure the safety of all workers and decrease the likelihood of adverse employment actions. Shifting cultural acceptance of marijuana as well as its legalization in many states means that employers need to thoughtfully evaluate their drug testing policies.

    Case law in 2019 moved toward protecting the medical use of marijuana in the workplace. Sixteen states provide workplace protections for legalized medical marijuana use either through their statutes or through case law, including Arkansas, Arizona, Connecticut, Delaware, Illinois, Maine, Minnesota, Nevada, New Jersey, New Mexico, New York, Oklahoma, Pennsylvania, Rhode Island, West Virginia, and Massachusetts.

    Experts postulate that there will be more law suits from employees or job applicants who were terminated or not hired because they failed a drug test and take medical marijuana. Further, the question of marijuana as treatment in workers’ comp claims will continue to be a hot issue in 2020.

  4. Failing to understand what’s happening at OSHAWhile many observers expected a decline in the number of OSHA workplace inspections, they increased to 33,401 in FY2019, higher than in any year since 2015. There’s been a record number of $100,000+ citations, higher penalties, more willful and repeat citations, as well as worker safety criminal prosecutions.

    On October 1, OSHA implemented major changes to how it prioritizes inspections and other compliance activities. Factors now considered in inspection weighting include:

    • Agency enforcement priorities
    • Impact of inspections on improving workplace safety
    • Hazards inspected and abated
    • Site-Specific Targeting (SST) program objective

    Further, the agency announced that it is moving away from its long focus on “OSHA recordables” as a way to measure the safety of a workforce and will focus its enforcement efforts on leading indicators, which are proactive.

  5. Failing to properly classify employeesWhile the contractor vs. employee status debate has existed for many years, it ramped up in 2019 and is expected to be a hot issue in 2020. Some estimate that over 30% of the workforce is part of the gig economy. With the passage of AB5 in California and a growing number of court cases, expect to see more legislation and court cases.
  6. Developing a false sense of security from distracted driving policiesOver the past five years, motor vehicle accident claims accounted for 28% of workers’ comp claims over $500,000. They now account for more worker fatalities than any other cause and savvy employers know they have to go beyond state laws to develop best practices. Employers are being held liable for employee crashes, even when employees use hand-free devices. The National Safety Council considers hands-free devices to be just as distracting as hand-held devices while driving.

    A distracted driving policy is only the beginning. It must be implemented, updated, and consequences for non-compliance enforced. There are growing options for discovering violations – locking devices, GPS monitoring, in-vehicle cameras, and so on.

  7. Being unprepared for workplace violenceWith more high-profile workplace shootings, fear of workplace violence is on the rise. According to the Society for Human Resource Management (SHRM), one in seven workers do not feel safe at work. Unfortunately, incidents and attitudes that lead to workplace violence are a reality at all workplaces. Workers feel safer and more valued when investment is made in security and preparation.
  8. Not reassessing your PPEWhen NASA was forced to cancel the first-ever spacewalk by two women because it did not have two appropriate space suits, social media erupted with stories from women in all industries about ill-fitting or no PPE. Through continued advancement and technological changes, “smart” PPE with sensors that monitor, collect, and record biometric, location, and movement data is on the rise. In addition, employees’ personal preferences and increased comfort have driven new innovations.

    Providing the right PPE is another way companies can recruit and retain more talent.

  9. Ignoring changes in workplace ergonomicsMusculoskeletal disorders (MSDs) develop over time, but are highly preventable at a reasonable cost. Yet, they account for close to one-third of all occupational injuries and illnesses and have a median of nine days away from work.

    New technologies and devices, an aging workforce, temporary workers, more employees working remotely, the dramatic shift to e-commerce, coupled with massive changes in warehousing and office designs have introduced new ergonomic challenges. Moreover, employees want to work in a comfortable environment and embrace employers that take a holistic approach to ergonomics. A 2019 study by Future Workplace and View found that air quality and natural light were most important to employees, topping fitness facilities.

    Addressing new potential ergonomic risks now will prevent costly injuries in the future, improve productivity, and retain talent.

  10. Failing to stay in touch with your medical provider networkPerhaps you’ve had a few good years with no lost-time injuries. No real need to stay in touch with your medical network. But networks and providers change as do work processes. An ongoing face-to-face relationship ensures your workers get appropriate and priority treatment as well as leads to better outcomes for injured employees.

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