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

Culture Issues: Having a Good Culture is More than being OSHA & HR Compliant (Benchmarking Your Culture)

If you cannot measure it, you cannot improve it.” – Sir William Thomson (Lord Kelvin).

Sure, you can think you’re improving something, but unless you know what the problem was in the first place you can’t truly fix it, and if you don’t truly fix it your improvement is nothing more than band-aid surgery. For example, a baseball player is in a deep slump and can’t hit a lick. Suddenly he’s goes four for five in a game and thinks he solved his problem. But what caused the problem? Without analyzing and benchmarking what he’s been doing all along, i.e. the angle of his bat, how high he holds his hands, the all-important “launch angle,” he will not have a true measure of if he is on the right track or just “having a good day.”

This is not uncommon in the business world. Let’s take for example your experience modifier, which is one of the biggest drivers of an employer’s workers’ compensation premium. The lower your experience modifier is the lower your premium will be.

Your experience modifier is based on your data, total claim dollars and audited payroll amounts over a three-year period.  Unfortunately, most insurance agents will come to you and say: “You have a 0.94 experience modifier. That is great! You are getting a credit of 6% for a great loss history.” In other words, your company is making money. Therefore, you must be stressing to your employees to be job safety conscious. But that’s not automatically the case.

Many times a business owner believes because they are making money they have a good culture, so all is good.  However, when they conduct an analysis, and do a deep dive into the all-important data points, they can see that there are issues within the company that is holding them back from real growth, productivity, accountability and profitability. From making real money.

To Continue Reading: Construction Today Magazine

OSHA alert: Form 300A deadlines approaching

This month, all employers required to keep Form 300, the Injury and Illness Log, should be reviewing the Log to verify that entries are complete and accurate and correcting any deficiencies. The information can potentially be used to target inspections; therefore, employers should carefully ensure they submit accurate records.

Two important dates are approaching:

Form 300A posting deadline: February 1, 2020

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, 2020, and kept in place until April 30.

For the forms

For access to Online OSHA 300/300A/301 reporting software: OSHA 300 Software

Form 300A electronic submission deadline: March 2, 2020

Under the electronic record-keeping rule, establishments with 250 or more employees that are currently required to keep OSHA injury and illness records, and establishments with 20-249 employees that are classified in certain industries with historically high rates of occupational injuries and illnesses must submit the form electronically to OSHA by March 2, 2020, using the Injury Tracking Application on OSHA’s website. OSHA began accepting forms on Jan. 2, 2020.

Remember, not all establishments with 250 or more employees need to submit their OSHA 300A data electronically. To review which establishments are exempt, click here.

Important note: In reporting 2019 data, establishments must now provide their Employer Identification Numbers (EIN). You’ll want to have that ready as you go to fill out the Injury Tracking Application.

What has to be recorded?

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 2019 include:

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 2019, companies required to maintain records still must post (and electronically submit, if applicable) 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.

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

OSHA watch

Few changes in Fall 2019 regulatory agenda

The Department of Labor’s regulatory agenda, released Nov. 20, has few changes from the Spring agenda.

Final rule stage

Added to the final rule stage is Cranes and Derricks in Construction: Exemption Expansions for Railroad Roadway Work, which stems from a September 2014 settlement between OSHA and the Association of American Railroads. The other three in the final rule stage are carryovers from the spring:

  • Rules of Agency Practice and Procedure Concerning OSHA Access to Employee Medical Records
  • Technical Corrections to 27 OSHA Standards and Regulations
  • Exposure to Beryllium to Review General Industry Provisions

Proposed rules

A rule on communication tower safety has moved to the proposed rule stage from the pre-rule stage. A pair of regulations has been added to the list of standards in the proposed rule stage. An NPRM of an update to the Safety Standard for Powered Industrial Trucks standard, which presently is based on ANSI’s 1969 safety standard, could be issued as early as January. Also, an NPRM clarifying regulatory language in the 2016 final rule on walking-working surfaces is expected by April.

BLS data may shed a light on future enforcement priorities

BLS recently released the injury and illness data for 2018. While injury and illness rates remained the same as in 2017, some industries had increases. The retail trade industry saw an increase in its total recordable rate from 3.3 in 2017 to 3.5 in 2018. Similarly, the agriculture, forestry, fishing and hunting industry saw its rate increase from 5.0 to 5.3.

The data drills down further to subsections. The highest subsector rates were pet care services at 11.4, veterinary services at 10.4, steel foundries at 10.2, and skiing facilities at 10.

Preventing cold stress and injuries from other winter hazards

Two resources are available:

Revised webpage on radiation safety

The revised webpage provides information on how to recognize and control ionizing radiation hazards.

New bulletin on shipyard hazards

A new Temporary Worker Bulletin focuses on shipyard safety.

Offshore renewable energy facilities responsibility of Department of Interior

The Department of the Interior will oversee workplace safety and health at offshore renewable energy facilities on the Outer Continental Shelf, according to a policy statement published in the Oct. 18 Federal Register.

Recent fines and awards

Massachusetts

  • The Connecticut Department of Labor cited Whitmore Poultry, based in Orange, for more than 500 violations of misclassifying employees as independent contractors and fined the company $90,000. The violations represented each worker for each week they performed work.

Missouri

  • Blue Nile Contractors Inc., based in Birmingham, was cited for failing to protect employees from trench collapse and electrical hazards. The company faces $210,037 in penalties.

New York

  • In Secretary of Labor v. Casale Construction Services Inc., an administrative law judge of the Occupational Safety and Health Review Commission rejected the construction company’s contention that its repeat safety citations should be vacated on the basis they were due to employee misconduct. Two citations carrying penalties of nearly $25,000 were upheld.

Pennsylvania

  • The Connecticut Department of Labor cited Five Brothers 1, based in Sunbury, for more than 600 violations of misclassifying employees as independent contractors and fined the company $180,600. The violations represented each worker for each week they performed work for Five Brothers 1. The company was also cited for failing to maintain workers’ compensation.

For additional information.

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

OSHA watch

New video explains inspection process

new video explains the OSHA inspection process.

New fact sheet on taxi driver safety

A new fact sheet focuses on keeping taxi drivers safe.

Input sought on safety training

Public input on how to improve access to online classes through the Outreach Training Program can be given here.

Recent fines and awards

Florida

  • Westwind Contracting Inc. was cited for exposing employees to excavation and confined spaces hazards after a worker drowned when water and mud-filled a catch basin in which the employee was working at a Pembroke Pines worksite. The contractor faces $185,239 in penalties.
  • Two commercial and residential roofing companies, Cruz Enterprises & Construction LLC based in Dover and Intex Builders LLC based in Tampa, were cited for exposing employees to struck-by and fall hazards at a Greenacres worksite. Inspected under the Regional Emphasis Program on Falls in Construction, the companies face a combined $83,348 in penalties.

Georgia

  • Discount retailer Dollar Tree Stores Inc. was cited for exposing employees to safety hazards, at its store on Atlanta Highway in Athens. The company faces $125,026 in proposed penalties for exposing employees to struck-by, trip and fall hazards by failing to keep passageways and walking surfaces in a clean, orderly and sanitary condition and for not maintaining access to portable fire extinguishers.

Illinois

  • AB Specialty Silicones LLC was cited for 12 willful federal safety violations after four employees suffered fatal injuries in an explosion and fire at the company’s Waukegan plant. The company faces $1,591,176 in penalties and was placed in the Severe Violator Enforcement Program. Citations included failure to ensure that electrical equipment and installations in the production area of the plant complied with electrical standards and were approved for hazardous locations. The company also used forklifts powered by liquid propane to transport volatile flammable liquids and operated these forklifts in areas where employees handled and processed volatile flammable liquids and gases, creating the potential for ignition.

Massachusetts

  • A petition to the U.S. Court of Appeals for the First Circuit asks that The Roof Kings LLC and its owner, Craig Galligan, be held in civil contempt for not fulfilling the terms of an order issued by the court in 2018. It also asks that The Roof Kings LLC provide written certification that they have abated the 32 cited violations affirmed in the settlement agreement, and pay overdue penalties of $206,090 plus interest, within 20 days.

Missouri

  • A food flavoring company, Kerry Inc., was cited for failing to provide fall protection to employees working in the company’s facility in Greenville after an employee fatally fell while trying to extinguish a fire at the plant. The company faces $223,525 in penalties for one willful and eight serious safety violations and was placed in the Severe Violator Enforcement Program.

Nebraska

  • Smith Mountain Investments LLC of Anson, Maine was cited for two serious safety and health violations for failing to protect workers from hazards associated with heavy physical activity in extreme heat conditions after a heat-related fatality at a jobsite in Inman. The utility pole inspection company faces $18,564 in penalties.

New York

  • The Dollar Tree Stores Inc. was cited for unsafe storage of material, obstructed exit routes and blocked electrical panels at the discount retailer’s Elmira location. The company has been cited several times at other locations and the citations, totaling $208,368, include three repeat violations.
  • Citations against Countryside Tree Service arising from a fatality where an employee was pulled into a wood chipper on his first day on the job at a Schenectady worksite were affirmed by an administrative law judge. Penalties are $66,986.

For additional information.

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

OSHA watch

Proposed revisions to Beryllium Standards for Construction and Shipyards finalized

The June 27, 2017 proposal to revise the construction and shipyards standards was finalized on September 30. A news release notes the rule:

  • Does not implement the proposal to revoke all of the standards’ ancillary provisions, but
  • Extends the compliance dates for the ancillary provisions to September 30, 2020 to account for the new proposal to revise or remove specific provisions; and
  • Maintains enforcement of the permissible exposure limit

Final rule issued for new respirator fit testing protocols

final rule which becomes effective September 26, 2019 adds two fit testing protocols to the agency’s respiratory protection standard (1910.134) was published in the Federal Register on September 26.

The additions are:

  • The modified ambient aerosol condensation nuclei counter quantitative fit testing protocol for full-facepiece and half-mask elastomeric respirators
  • The modified ambient aerosol CNC quantitative fit testing protocol for filtering facepiece respirators

These new methods are in addition to the standard’s four existing protocols and are variations of OSHA’s original ambient aerosol CNC protocol, but have fewer test exercises, shorter exercise duration, and a more streamlined sampling sequence.

New secretary of labor

Eugene Scalia is the new secretary of labor, after the Senate confirmed him Sept. 26 in a 53-44 vote. Scalia, a corporate lawyer and the son of late Supreme Court Justice Antonin Scalia, replaces acting Secretary of Labor Patrick Pizzella who has been in charge of the department since R. Alexander Acosta resigned on July 19.

New weighting system for inspections

Under the current enforcement weighting system, certain inspections are weighted based on the time taken to complete the inspection or, in some cases, the impact of the inspection on workplace safety and health. The Weighting System (OWS) for fiscal year (FY) 2020 adds enforcement initiatives such as the Site-Specific Targeting to the weighting system and other factors, including agency priorities and the impact of inspections. It will incorporate the three major work elements performed by the field: enforcement activity, essential enforcement support functions (e.g., severe injury reporting and complaint resolution), and compliance assistance efforts.

For more information.

Tribal business not subject to OSH Act

In Secretary of Labor v. Red Lake Nation Fisheries Inc., an administrative judge dismissed citations levied against a fishery after two of its workers drowned, finding that the 8th U.S. Circuit Court of Appeals in St. Paul, Minnesota, had previously held that the U.S. Secretary of Labor does not have the authority to enter tribal lands to inspect a workplace. Red Lake Nation Fisheries Inc., based in Redby, Minnesota, is owned and operated by federally recognized Indian tribe the Red Lake Band of Chippewa Indians.

New alert: working safely near overhead powerlines

The latest alert offers solutions for working safely near overhead power lines.

Oil and gas training tool

The updated Oil and Gas Well Drilling and Servicing eTool includes solutions to common well site incidents, hot work, and hydrogen sulfide hazards.

Joint guidance on GHS pictogram requirements

In concert with Health Canada, joint guidance on pictogram requirements for three hazard communication categories has been released. The categories are Hazards Not Otherwise Classified, Physical Hazards Not Otherwise Classified, and Health Hazards Not Otherwise Classified.

Cal OSHA overhauls reporting requirements for serious injuries

Changes to the definition of “serious injury or illness” bring California injury reporting requirements more in line with the federal hospitalization and amputation rule. The new rule:

  • Eliminates the old 24-hour minimum time for a stay at the hospital for an inpatient hospitalization to become reportable;
  • Specifies an inpatient hospitalization must be required for something “other than medical observation or diagnostic testing”
  • Replaces “loss of a member” with the term “amputation”
  • Includes loss of an eye as a specific type of reportable injury
  • Deletes the exclusion for serious injuries or deaths caused by a violation of the Penal Code
  • Narrows the exclusion for injuries caused by auto accidents on a public street; accidents that occur in a construction zone are now reportable

Recent fines and awards

Florida

  • Twins Twins LLC, a tortilla company, was cited for exposing employees to amputations at the company’s facility in Labelle. The company faces $81,682 in penalties. Conducted under the National Emphasis Program on Amputations and Regional Emphasis Program for Powered Industrial Trucks, the inspection found several violations related to lockout tagout, machine guarding, and failure to report a partial finger amputation within 24 hours of the employee’s hospitalization. The company was placed in the Severe Violator Enforcement Program.
  • Hough Roofing Inc., based in Palm Bay, was cited for exposing employees to fall hazards after a worker suffered a fatal injury from a fall while performing roofing activities at a work site in Melbourne. The roofing contractor faces $26,142 in penalties
  • UPS Inc. was cited for failing to protect employees working in excessive heat after an employee suffered heat-related injuries near the Riviera Beach facility. The company faces $13,260 in penalties, the maximum penalty allowed by law for a serious violation.

Georgia

  • Hyundai Transys Georgia Powertrain Inc., operating as Powertech America Inc., was cited for exposing employees to struck-by and fall hazards after a fatality at the company’s West Point facility. The automobile transmission manufacturer faces $68,194 in penalties.

Illinois

  • Polo Masonry Builders Inc., based in Park Ridge, was cited for exposing employees to fall and scaffolding hazards while working on a commercial building project in Chicago and faces penalties of $252,136. The company, which has been cited for fall protection violations 13 times since 2010, was placed in the Severe Violator Enforcement Program.

Michigan

  • A settlement was reached with Kamphuis Pipeline Company, based in Grand Rapids, to resolve trenching hazard-related citations. The company agreed to cease business operations and pay penalties of $509,071 for willful and serious violations. Company owner and founder Daniel J. Kamphuis agreed to surrender his North Dakota contractor license and both he and the company also agreed not to have any ownership or managerial interest in any construction business conducting trenching and excavation activities within the United States in the future.

New York

  • Rex Harper, doing business as REH Property Maintenance, was cited for improper asbestos removal and disposal at Superior Steel Door & Trim Co. Inc. in Jamestown. Harper faces $168,772 in proposed penalties.

North Carolina

  • Oldcastle APG South Inc., based in Greensboro, and operating as Coastal, was cited for exposing employees to amputation, struck-by and silica hazards at the company’s facility in Riviera Beach, Florida. Oldcastle APG South Inc. faces $132,037 in penalties.

Wisconsin

  • Koller Industries operating as Aurora Castings Services was cited for continually exposing employees to machine hazards at the facility in Niagara. The company is contesting the citations that total $ 206,291 in penalties.
  • Wood Sewer & Excavation Inc. was cited for willfully exposing employees to excavation hazards at a construction site in Fox Point. The company faces $65,921 in penalties.

For additional information.

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

OSHA’s Top 10 violations: three action steps for employers

For the ninth consecutive year, Fall Protection – General Requirements is the most frequently cited standard, OSHA announced at the 2019 National Safety Council Congress & Expo. The rest of the preliminary list of the Top 10 violations for fiscal year 2019 also remained largely unchanged from FY 2018, with one minor change. Lockout/Tagout, which ranked fifth in FY 2018, advanced to No. 4, trading places with Respiratory Protection.The data, which covers violations cited from October 1, 2018 through August 31, 2019, is preliminary, and therefore, the numbers may change. However, the ranking is likely to remain consistent when the final numbers are released later this year.

Here are the top 10 violations:

  1. Fall Protection (construction) – General Requirements (1926.501) – 6,010 violationsCommon violations included failure to provide fall protection near unprotected sides or edges and on both low-slope and steep roofs. Roofing, framing, masonry and new single-family housing construction contractors were among the most frequently cited. Although the fall protection standard was updated in 2016, some experts suggest it will take several years for employers to get the necessary facility updates into their budgetary cycle.
  2. Hazard Communication (1910.1200) – 3,671 violationsConsidered low-hanging fruit for inspectors, hazard communication has been #2 for several years. Lack of a written program, inadequate training, and failure to properly develop or maintain safety data sheets (SDSs) are common citations. Auto repair facilities and painting contractors were among the industries that received many hazard communication citations.
  3. Scaffolding (construction) – General Requirements (1926.451) – 2, 813 violationsMasonry, siding, and framing contractors are the most commonly cited employers for this violation. Lack of proper decking, failure to provide guardrails where required, and failure to ensure that scaffolds are adequately supported on a solid foundation are common violations.
  4. Lockout/Tagout (1910.147) – 2, 606 violationsEmployers cited under this standard failed to establish an energy control procedure, did not train employees in proper lockout/tagout procedures, failed to conduct periodic evaluations of procedures, and failed to use lockout/tagout devices or equipment. Plastics manufacturers, machine shops, and sawmills were frequently cited.
  5. Respiratory protection (29 CFR 1910.134) – 2,450 violationsCitations related to failure to fit test, establish a program, and medically evaluate employees who wore respirators were common violations issued. Auto body refinishing, painting contractors, masonry contractors, and wall covering contractors received many citations.
  6. Ladders (construction) (1926.1053) – 2,345 violationsLadders continued to be a common violation in the roofing, siding, framing and painting trades. Frequent violations include, ladders with structural defects, failure to have siderails extend three feet beyond a landing surface, using ladders for unintended purposes, using the top rung of a step ladder, and ladders with structural defects.
  7. Powered Industrial Trucks (1910.178) – 2,093 violationsForklift violations dominated this standard, including deficient or damaged forklifts that were not removed from service, failure to safely operate a forklift, operators who had not been trained or certified to operate a forklift, and failure to recertify forklift drivers and evaluate every three years. Violations were widespread across many industries, but particularly prominent in warehousing and storage facilities and fabricated and structural metal manufacturing.
  8. Fall Protection (construction) – Training Requirements (1926.503) – 1,773 violationsViolations of this standard include failing to provide training to each person required to receive it, failure to certify training in writing, inadequacies in training leading to the failure of retention by the trainee, and failing to retrain in instances where the trainee failed to retain the training content.
  9. Machine Guarding (1910.212) – 1,743 violationsWhile cited in many industries, machine shops and fabricated metal manufacturing saw many citations for failing to ensure that guards are securely attached to machinery, improper guarding of fan blades, and failure to properly anchor fixed machinery.
  10. Personal protective and lifesaving equipment (construction) – eye and face protection (29 CFR 1926.102) – 1,411Appearing on the list for the first time in FY 2018, this standard includes failing to provide eye and face protection where employees are exposed to hazards from flying objects, failing to provide protection from caustic hazards, gases, and vapors, and failing to provide eye protection with side protection. Violations were concentrated in the housing industry, with roofers, house framers and other contractors cited often.

Three action steps for employers

With little variation from year-to-year, this list is a reminder to employers that the same violations are putting employees at risk and costing employers thousands of dollars in citations. Here are three steps to take:

  1. Drill down to your industryEmployers can drill down even further and look at the most frequently cited Federal or State OSHA standards by industry for a specified 6-digit North American Industry Classification System (NAICS) code. If your facility is inspected, there’s a very good chance it will include these issues.
  2. Be strategicA common approach is to conduct walk throughs, which can be helpful to identify new or previously missed hazards and failures in hazard controls. However, this is reactionary, not strategic. OSHA states, “an effective occupational safety and health program will include the following four main elements: management commitment and employee involvement, worksite analysis, hazard prevention and control, and safety and health training.” Having a risk management approach is the best possible defense.
  3. Continually reinforce training and commitment to safetyLearning does not start and stop with training. Safe practices have to be practiced and applied to be lasting. While most workers know not to stand on the top rung of a step ladder, it happens because they are in a hurry, careless, or not paying attention. Signage, toolbox talks, digital reminders all help; but most important is effective leadership and employee engagement. When managers enforce the safety rules and stand behind them 100%, workers understand it’s important to their health and well-being and are empowered to take ownership of their own and other’s safety.Further, employee complaints triggered 41% of the unprogrammed inspections and over 23% of all inspections. Employees who feel safe at work and believe the employer cares about their safety, are less likely to file a complaint.

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

OSHA watch

Comments sought on possible revision to silica standard

request for information was published August 15 in the Federal Register for input on potential revisions to Table 1 of the respirable crystalline silica standard for construction. Table 1 includes the task or equipment, engineering / work practice control methods, and required respiratory protection / minimum assigned protection factors for all shifts. The deadline to comment is Oct. 15.

New webpage on leading indicators

A new webpage is aimed at helping employers use leading indicators to improve their health and safety programs.

Employers reminded to submit Form 300A data

media release reminds employers who have not already done so to submit their 2018 Summary of Work-Related Injuries and Illnesses (Form300A). The deadline was March 2.

Access FREE electronic OSHA 300 Recordkeeping Software that creates the OSHA required data transmission file for online reporting here.

New way to track OIG recommendations

The Department of Labor Office of Inspector General has launched a Recommendation Dashboard website showing the status of its 235 recommendations for 12 agencies, including OSHA and the Mine Safety and Health Administration.

Recent fines and awards

California

  • Garden Films Productions LLC, based in Culver City, was cited for failing to protect employees from hazards while filming a movie in Norcross, Georgia and faces penalties of $9,472.

Florida

  • L N Framing Inc. was cited for exposing employees to fall hazards at a Jacksonville worksite and faces $58,343 in penalties.
  • Point Blank Enterprises Inc., operating as The Protective Group in Miami Lakes, was cited for exposing employees to amputation and other safety hazards and faces $92,820 in penalties.
  • Brad McDonald Roofing & Construction Inc. was cited for exposing employees to fall and other safety hazards at two construction sites in Lutz and Palmetto. The residential and commercial roofing work company faces $274,215 in penalties.

Georgia

  • Atlanta Kitchen LLC was cited for exposing employees to amputation, silica, and other safety and health hazards at its Decatur manufacturing facility. The countertop manufacturer faces $132,604 in penalties.

New York

  • Arbre Group Holding, doing business as Holli-Pac Inc., was cited for willful and serious violations of workplace safety and health standards at its Holley facility. The company, which packages frozen fruits and vegetables for retailers, faces a total of $200,791 in penalties.

Indiana

  • Five Star Roofing Systems Inc., based in Hartford City, was cited for repeatedly exposing employees to fall hazards while performing roofing work at a commercial building site in Lake Barrington, Illinois. The company faces $220,249 in penalties.

Missouri

  • H. Berra Construction Co., based in St. Louis, was cited for exposing employees to excavation and trenching hazards at a residential construction site in Saint Charles, and faces penalties of $143,206.
  • Missouri Cooperage Company LLC, a subsidiary of Independent Stave Company, was cited for exposing employees to amputation, noise, and other safety and health hazards at the spirits and wine barrel-making facility in Lebanon, and faces $413,370 in penalties.

Pennsylvania

  • A federal judge in the U.S. District Court has awarded $1,047,399 in lost wages and punitive damages to two former employees of a Montgomeryville-based manufacturer, Lloyd Industries, after a jury found the company and its owner fired them in retaliation for their participation in a federal safety investigation.
  • New Finish Construction, LLC, based in Fairchance, must pay $25,000 in fines for safety violations that led lead to the death of a worker. An ALJ of OSHRC affirmed two citations relating to working near energized sources, but vacated three citations and their accompanying penalties.

Tennessee

  • The Tennessee Valley Authority (TVA) was ordered to reinstate a former employee who was placed on paid administrative leave, and then later terminated in retaliation for raising nuclear safety concerns and pay $123,460 in back wages and interest, and $33,835 in compensatory damages, as well as attorney fees.

Wisconsin

  • Choice Products USA LLC was cited for continually exposing employees to machine safety hazards at the cookie dough manufacturing facility in Eau Claire. The company faces $782,526 in penalties, and was placed in the Severe Violator Enforcement Program.

For additional information.

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

OSHA watch

FY 2018 Enforcement summary released

OSHA conducted 32,023 total inspections in FY 2018, a number that has remained relatively stable over the past three fiscal years. For more information see the related article, Insights from OSHA’s recently released enforcement summary.

Comments on updating Lockout/Tagout standard due August 18

Comments on a possible update of the Control of Hazardous Energy (Lockout/Tagout) standard are due by Aug. 18. Emphasis is being placed on how employers have been using control circuit devices and how modernizing the standard might improve worker safety without additional burdens for employers. It wants to hear from employers about how their operations would be affected if OSHA staff interprets the “alternative measures that provide effective protection” requirement of the minor servicing exception to include use of the same reliable control circuits. For additional details and information on how to file comments.

New training programs available to help protect construction workers from fall hazards

Two Susan Harwood Training Grant Program recipients have developed free training programs to help protect construction workers from fall hazards. The University of Tennessee training program offers three modules on OSHA’s role in workplace safety, health and safety standards affecting construction workers, and preventing common types of falls at construction sites. The University of Florida training program uses software to present 360-degree panoramas of construction scenarios to test trainees’ skills at identifying fall hazards. The training software is available in English and Spanish.

Whistleblower website updated

The streamlined design highlights important information for employers and employees on more than 20 statutes enforced by the agency. The new whistleblower homepage utilizes video to showcase the covered industries, which include the railroad, airline, and securities industries.

Whistleblower action: Truck driver reinstated after refusing to drive in winter storm

A box truck driver was reinstated and will receive almost $200,000, including $100,000 in punitive damages, from Kentucky-based Freight Rite, Inc. that fired him after he refused to drive in bad weather. Inspectors determined the termination is a violation of the Surface Transportation Assistance Act (STAA). For more information.

Reminder: Hurricane preparedness and response

The Hurricane Preparedness and Response webpage provides information on creating evacuation plans and supply kits and reducing hazards for hurricane response and recovery work.

Cal/OSHA emergency wildfire smoke regulation takes effect

The emergency wildfire smoke regulation took effect July 29 after being approved by the state’s Office of Administrative Law.

Effective through January 28, 2020 with two possible 90-day extensions, the regulation applies to workplaces where the current Air Quality Index (AQI) for airborne particulate matter (PM 2.5) is 151 or greater, and where employers should reasonably anticipate that employees could be exposed to wildfire smoke.

Recent fines and awards

California

  • After a worker’s hand was crushed while cleaning a rotating auger, food processing company, SFFI Company, Inc., faces six citations and $79,245 in penalties related to lockout/tagout and training.
  • Resource Environmental, Inc., faces $49,500 in penalties after an unstable, unsupported wall collapsed during a building demolition, resulting in fatal injuries to a worker.
  • Gladiator Rooter & Plumbing was working in a crawl space replacing underground sewer pipes for airline caterer Gate Gourmet, Inc. at the San Francisco International Airport when two plumbers were poisoned by carbon monoxide, one requiring hospitalization. Gladiator Rooter & Plumbing was fined $50,850 for eight violations and Gate Gourmet faces $18,000 in proposed penalties for one violation.
  • In Secretary of Labor v. Bergelectric Corp., an OSHRC judge vacated three citations levied against the electric company, based in Carlsbad, after finding that the company did have an adequate fall protection program in place.

Florida

  • Jimmie Crowder Excavating and Land Clearing Inc. faces $81,833 in penalties for exposing employees to amputation and other safety hazards at the company’s facility in Tallahassee. An employee suffered an arm amputation after it was caught in a conveyor belt that started unexpectedly as an employee removed material.
  • The Jacksonville Zoological Society Inc. was cited for exposing employees to workplace safety hazards at the Jacksonville zoo after a zookeeper was injured by a rhinoceros. The animal park faces $14,661 in proposed penalties.
  • Tampa-based Edwin Taylor Corp., failed to provide fall protection on several occasions, one resulting in the death of a worker who fell 22 feet while building homes must pay a $101,399 fine, an administrative law judge with the OSHRC ruled.

Georgia

  • Transdev Services Inc. was cited for exposing employees at a Norcross worksite to safety and health hazards. The company faces $188,714 in penalties for obstructing access to emergency eyewash and shower stations, failing to label hazardous chemicals, provide training on hazardous chemicals and incipient stage firefighting and fire extinguisher use, and train and evaluate forklift operators properly. The company had been cited previously for similar violations.
  • Woodgrain Millwork Co., operating as Woodgrain Distribution Inc, was cited for exposing employees to chemical and struck-by hazards at the company’s distribution facility in Lawrenceville. The company faces $125,466 in penalties.
  • Norcross-based Fama Construction must pay nearly $200,000 in penalties because it was the controlling employer on a worksite and found to have repeat violations according to an OSHRC ruling.

Illinois

  • Inspected after an employee was electrocuted, Hudapack Metal Treating of Illinois Inc, based in Glendale Heights, was cited for 21 serious health and safety violations related to electrical safety and PPE. The company faces penalties of $181,662.

Missouri

  • R.V. Wagner Inc, based in Affton, was cited for exposing employees to trench engulfment hazards as they installed concrete storm water pipes in St. Louis. The company received two willful violations for failing to use a trench box or other trench protection techniques in an excavation greater than five feet in depth and to provide a safe means to exit the excavation and faces proposed penalties of $212,158.

New York

  • Northridge Construction Corp. was cited for willful and serious violations of workplace safety standards at the company’s headquarters in East Patchogue. The company faces $224,620 in penalties following the death of an employee when a structure collapsed during installation of roof panels on a shed. The penalties are being contested.
  • U.S. Nonwoven Corp., a home and personal care fabric product manufacturer, was cited for repeat and serious safety violations after an employee suffered a fractured hand at the plant in Hauppauge. The company faces $287,212 in penalties.

North Carolina

  • Burlington-based Conservators Center Inc. received three serious citations totaling $3,000, after an intern was killed by a lion during a routine cleaning,

Pennsylvania

  • In Francis Palo Inc. v. Secretary of Labor, the 3rd U.S. Circuit Court of Appeals in Philadelphia declined to review the OSHRC decision finding that substantial evidence supported an administrative law judge’s ruling that due diligence by the company would have prevented the collapse that injured two workers.

Wisconsin

  • Following a fatality, Pukall Lumber Company Inc, a lumber mill in Arbor Vitae, was cited for exposing employees to multiple safety hazards. The company faces penalties of $348,467 for 15 violations, including two willful citations for failing to implement energy control procedures, and ensure the conveyer had adequate guarding to prevent employees from coming in contact with the moving parts.

For additional information.

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

12 mistakes employers make when an OSHA inspector knocks unexpectedly

Even well-prepared employers can panic when an OSHA inspector arrives unexpectedly at the door. Why are they here and are we really prepared?

While the chances of an inspection are small (there are about 8,000,000 workplaces and OSHA and its State Plans average about 73,000 annually), advance notice is rare. In fact, Compliance Safety & Health Officers (CSHO) are prohibited by law from providing employers with advanced notice of pending inspections, with limited exceptions (see p. 3-3 of field operations manual).

Employers who are ill-prepared for an inspection and make bad decisions during an inspection face unwelcome and costly fines. Even well-prepared employers find it difficult to escape an inspection without a citation – there is a 75% chance that at least one violation will be found.

Here are 12 mistakes commonly made by employers:

  1. Refuse to let OSHA enter the worksite. While most inspections are surprises, many experts and former inspectors advise against requiring a warrant. This is likely to bring enhanced scrutiny and create an adversarial tone. A cooperative attitude is important; however, this is a good time to negotiate the limit and scope of the inspection.
  2. Fail to consider the personality of the employee designated to meet with and accompany the inspector. While it’s critical the employee be knowledgeable and intimately familiar with the operations and safety policies of the business, personality and attitude play a major role. Someone who is defensive, arrogant, or a know-it-all is likely to irritate the CSHO. The inspector’s report includes a place to note lack of cooperation. And don’t designate someone who loves to talk and tell how wonderful the company is. It’s going to fall on deaf ears and they probably will volunteer too much information. Best to designate someone who is polite, professional, can stay focused, and who is confident and willing to ask questions.
  3. Don’t have a backup for the designated employee. Inspectors will wait a “reasonable” amount of time – usually a half hour to an hour. While that might be a good opportunity to correct some small hazards and tidy up housekeeping, delaying the inspection will be noted on the form and it’s unlikely anything you do in that time is going to make a significant difference.
  4. Fail to limit the scope of the inspection. This is perhaps most important. Employers have a right to know the purpose of the inspection and to have a “reasonable inspection” at a “reasonable time.” Employers should insist on an opening conference when the CSHO explains the reason for the inspection and the employer can negotiate the scope. It’s also an opportunity to ask questions and to try to establish ground rules about how the inspection will proceed, including interviews, collection of documents, and the physical access to the facility.

    Some inspections, such as those under the Site-Specific Targeting Enforcement Program, can be wall-to-wall but most unprogrammed inspections can be limited. If the inspection was prompted by an employee complaint, the employer has a right to see the complaint and limit the inspection to related areas. If the CSHO is there to investigate an incident, take the most direct route to the site of the incident. Minimize exposure to the rest of the facility. Everything inspectors see is fair game for citations, such a missing handrails, poor housekeeping, improper signage, fire extinguishers, etc. If an officer tries to do a wall-to-wall inspection when there is a specific reason for the inspection, the employer should push back.

  5. Don’t know the criteria for emphasis program or compliance directive inspections. If there is a programmed inspection under an emphasis program or compliance directive, an employer can refuse, if they know they don’t fit the criteria.
  6. Don’t replicate the photos, videos, and notes the inspector makes. It’s important to escort the CSHO at all times and to mirror the actions of the inspector during the walkthrough. Take the same photos, videos, notes, measurements, sampling etc. so you have a clear record of what they captured. OSHA has a six-month statute of limitations to issue citations.
  7. Admit to violations. There may be violations pointed out during a walk through. For example, if an inspector points out an unguarded machine, say you will address it, but don’t admit the violation or try to go into a lengthy explanation of why it is not guarded.
  8. Don’t insist that document requests be in writing. At the opening conference, it’s best to agree that document requests, except OSHA Recordkeeping forms, be made in writing (it can be handwritten) so that there is no confusion over what documents are being requested and so that the employer is not cited for failure to produce a document it did not believe was requested. It is important to remember that the employer has no duty to produce certain documents (e.g., post-accident investigations, insurance audits, consultant reports, employee personnel information) if a regulation does not require such production. Any documents produced can be utilized to issue citations. If you don’t have the document, say so. Don’t rush to produce a new document.

    While not a comprehensive list, long-time OSHA employee and Area Director John Newquist recently published the “Scary 13” – documents employers can’t produce during an inspection – in The National Safety Council’s June Safety Health magazine.

  9. Don’t protect their trade secrets and business confidential information from disclosure to third parties. This is an employer’s right, but it is critical to keep a record and identify the documents as confidential.
  10. Don’t sit in on management interviews. A supervisor’s comments are imputed to the employer and, for this reason, employers have the right to and should be present and participate in interviews of management, regardless of whether the manager wants the representative there. That right does not exist with non-management employees, but it’s important for employees to know their rights about interviews and that they will not suffer adverse employment actions. While it’s important to be careful not to coerce, intimidate, or influence, employers can prepare employees for interviews. Also, the employer can request that “on floor” interviews be limited to five-minutes on production and processes. Employers should attempt to schedule more extensive interviews about training, background, etc. that should take place in a conference room with a table and chairs, but no white boards or documents present.
  11. Consider only the cost of the penalty. Employers have the critical right to contest OSHA’s citations, but some employers want to move on quickly, and consider only the monetary amount when deciding whether to contest, particularly when the cost is low. A recent webinar, Prepare for and Manage an OSHA Inspection by the Conn Maciel Carey law group, notes that there are several goals an employer should consider before accepting a citation, as well as strategies to reduce the impact. Accepting a citation can open the door to future, more costly repeat violations ($132,598), impact civil wrongful death or personal injury actions, affect bidding, harm customer and employee relationships, increase possibilities of being placed in the Severe Violators Enforcement Program, and affect insurance costs and coverage.
  12. Don’t immediately correct hazards, when possible. The closing conference usually takes place one to six weeks after the inspection. This is a good time to demonstrate cooperation by showing that hazards identified during the inspection have been corrected or abated.

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