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

Study: Safety management in the construction industry 2020

SourceDodge Data & Analytics, 2020

Findings: The report examines safety management in construction. Key findings include:

  • Jobsite workers and supervisors dominate the four factors selected by the highest percentage of contractors as essential aspects of a world-class safety program: jobsite worker involvement (84%), strong safety leadership abilities in supervisors (83%), regular safety meetings with jobsite workers and supervisors (82%) and ongoing access to safety training for supervisors and jobsite workers (77%).
  • The most popular safety policies are the site-specific ones, including creating site-specific safety and health plans and training programs for all employees and subcontractors. However, there is room for wider adoption of these measures, especially among small contractors (fewer than 20 employees).
  • While most contractors (66% or more) encourage workers to react to and report hazards onsite, far fewer ask workers for input on safety conditions (50%) or involve workers in safety planning (39%).
  • Toolbox talks remain the most effective way to communicate safety messages and provide information on tools, practices, and materials.
  • Contractors still expect to increase their use of online training in the next few years, but, surprisingly, a lower percentage reported using it than in 2017.

Takeaway: While involving jobsite worksite workers has topped the list of essential aspects of a world-class safety program since 2015, this report shows that strong safety leadership by supervisors and regular safety meetings between jobsite workers and supervisors are also essential. The study reveals more opportunities to engage jobsite workers as well as opportunities to strengthen the training of supervisors.

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

Study: Top 20 most physically demanding jobs

SourceInsurance Providers

Findings: To identify the most physically demanding jobs, researchers analyzed data from the Occupational Information Network (O*NET) and created an index to measure the overall level of physical demands for different jobs based on strength, stamina, coordination, and flexibility requirements. Not surprisingly, 15 of the top 20 jobs were in careers such as roofers, construction, and firefighters. But the #1 spot for the most physically demanding job may surprise you. Among all occupations on this list, dancers require the greatest amount of stamina, flexibility, and coordination.

Takeaway: Don’t get swayed by stereotypes. Not all physically demanding jobs involve manual labor.

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

Things you should know

Funding package extends TRIA, eliminates Cadillac Tax

The federal funding package signed by President Donald Trump in late December includes a seven-year extension of the Terrorism Risk Insurance Program (TRIA). The Cadillac tax, an excise tax on high cost employer-sponsored health plans, which was a part of the Patient Protection and Affordable Care Act (ACA) was permanently repealed.

Medical and indemnity payments increase with age of worker: WCRI

A recent study from the Workers Compensation Research Institute (WCRI) found little difference in injury rates and outcomes for workers regardless of their age, with rates highest for workers aged 19 and younger, followed by workers aged 55 to 65. Younger workers are more likely to suffer from struck-by injuries or cuts and older workers more likely to suffer from falls and fractures.

The key differences are in payments per claim and lost time. Payments per claim steadily increased up to age 64, with permanent partial disability/lump sum payments averaging a little more than $10,000 per claim for younger workers, climbing to an average of nearly $25,000 for workers aged 60 to 64. Average duration of temporary disability benefits plateaued at age 45 at 24 weeks compared with nine weeks for the youngest workers.

There was a slightly more than 10% chance to have seven days of lost time at 36 months of maturity for workers aged 15 to 19 and a 31% chance for workers 65. Indemnity payments for workers aged 60 – 64 averaged $22,000 compared to under $5,000 for younger workers.

For the report.

Fatal injuries increase: BLS

Workplace fatalities increased from 5,147 in 2017 to 5,250 in 2018, but the fatal occupational injury rate held steady at 3.5 per 100,000 full-time equivalent workers according to the Bureau of Labor Statistics. Fatalities from transportation remained the most frequent fatal occupational injury, accounting for 40% of occupational deaths. Workplace violence deaths increased 3%, including a 12% increase in suicides, and unintentional overdoses also increased. Fatalities from falls decreased 11% after reaching a 26-year high in 2017 and contact with objects and equipment fatalities declined 13%.

NCCI launches online comp court case tool

Court Case Insights,” a new resource tool from the National Council on Compensation Insurance (NCCI), provides information and interpretations of court cases reported by NCCI’s legal team.

Virginia Beach mass shooting results in 450 comp claims

More than 450 city workers have filed workers’ compensation claims following a mass shooting at the Virginia Beach city offices in May that left 12 dead and six injured. Many of the claims are for mental stress.

State News

California

  • The new reporting requirements for Cal/OSHA went into effect Jan. 1. AB 1804 directs employers to immediately disclose incidents via telephone or through a new online portal. Employers may continue to send incident reports by email until the agency launches the new site.

Florida

  • The maximum weekly benefit level rises to $971, up $31.

Illinois

  • Governor signs amendments (SB 1557) to The Cannabis Regulation and Tax Act to clarify workplace drug testing and other issues, including protections for an employer’s drug testing policy.
  • Legislation regulating the use of artificial intelligence (AI) in hiring practices went into effect Jan. 1.
  • The Workers’ Compensation Commission is reminding stakeholders that it has proposed a new rule, required by Senate Bill 94, that specifies how an insurer must send a complete explanation when medical bills are denied.

Massachusetts

  • new study by the Department of Health of Workers’ Compensation Data aims to help identify priorities for reducing injuries and illnesses among private workers. One finding shows that health care continues to be one of the most dangerous types of work in the state, and violence against health workers is one of the leading causes of injuries.

Missouri

  • The Department of Commerce and Insurance has recommended a 1.6% decrease in workers compensation insurance loss costs for 2020. The change is one of the smallest in the country and the smallest decrease in recent years.

New York

  • The Workers’ Compensation Board has published FAQs relating to the drug formulary.
  • The law prohibiting employers from asking applicants about their salary histories went into effect Jan. 6.

Tennessee

  • The insurance commissioner approved a 7.1% overall loss cost decrease for 2020, lower than the recommended 8.2% from NCCI. The reduction will become effective March 1, 2020.

Virginia

  • The Corporation Commission has approved an overall loss cost decrease of 10.7% for the voluntary market and an 8.4% decrease for the assigned-risk market, effective April 1.
  • The State Corporation Commission (SCC) has approved revisions to the premium levels that will lower the overall premium level for the industrial, federal, surface and underground coal mine classifications in the voluntary market and assigned risk plan. The changes become effective April 1.

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

Legal Corner

Workers’ Compensation

Privette doctrine protects film studio from personal liability suit – California

In Castro v. ABC Studios Inc., ABC contracted with the owner of a gas station to film a TV show and also hired Executive Assurance (EA) to provide security for the property. On the side of the property was a metal rolling gate weighing about 900 pounds that did not have stops, in violation of Cal OSHA. On the day of the filming, a security guard employed by EA attempted to stop the rolling gate from hitting a truck and the gate fell on her, causing serious injury.

The security guard filed suit against the landowners and ABC, asserting claims for premises liability and negligence. The Court of Appeal for the 2nd District upheld the finding of the lower court that the Privette (1993 decision in Privette v. Superior Court) doctrine applied. Subject to certain exceptions, the Privette doctrine bars employees of independent contractors from suing the hirer of the contractor for workplace injuries.

After ABC was dismissed from the action, a jury found the security guard sustained damages of $2,534,613. The jury allocated 72.5% of fault to the landowners and 27.5% of fault to EA.

Injuries incurred during employer-sponsored bowling event compensable – Florida

In Reynolds v. Anixter Power Solutions, the 1st District Court of Appeal overturned the denial of benefits to an employee who was injured while bowling with co-workers during an employer-sponsored event. While the employer argued the event was an excluded “recreational activity”, the court noted that the event took place during regular work hours and had, as one of its purposes, the discussion of business goals for the upcoming year. Although employees could decline the invitation, this was insufficient to prove the event was voluntary, particularly in light of the goal stated by the employer.

Daunting burden of proof for toxic exposure nixes claim – Florida

In City of Titusville v. Taylor, an appellate court overturned the award of benefits to a city employee who had spent several months working to clear a wooded area and was diagnosed with fungal meningitis. Although a specialist presented testimony that the workplace was the “most likely” source of the fungus, the law requires that occupational causation be proven by clear and convincing evidence. In noting that the employee had failed to meet his burden of proof, the appellate court lamented “the Herculean task created by the heightened burden of proof for toxic exposure claims,” but said this was a matter for the legislature, not the courts.

Stuntman’s estate awarded $8.6 million in civil suit – Georgia

A stuntman died in July 2017 while shooting a scene for the television show, The Walking Dead, in Senoia. While AMC Networks argued that the stuntman was an employee of Stalwart Films, the family argued that he was an independent contractor and the jury agreed. Jurors found AMC Networks’ entity, TWD 8, and its production company, Stalwart Films, negligent, but said AMC Networks was not liable.

Exclusive remedy does not bar class-action suit under Biometric Information Privacy Act – Illinois

In Treadwell v. Power Solutions Int’l, an employee’s putative class action against his employer alleged the use of a fingerprint timekeeping system violated the state Biometric Information Privacy Act (“BIPA”). The employee claimed he had been injured by the employer’s interfering with his right to control his biometric data and the employer argued that claims for monetary damages under BIPA are preempted by the exclusive remedy provisions of workers’ comp.

Since the employee had shown that the employer’s actions were intentional, a federal district court found that one of the exclusion provisions of exclusive remedy was met – the injury was not accidental. Further, the court noted that the damages alleged were not the sort contemplated to be compensable under the state’s workers’ comp statute.

Award for amputation insufficient – Indiana

In Senter v. Foremost Fabricators, a three-judge panel of the Court of Appeals unanimously reversed and remanded a Workers Compensation Board decision, finding that an award of $12,880 was insufficient for a worker who had to have her pinkie finger and part of her hand amputated. The court noted that the Board had read the statute too narrowly and that while she was not entitled to an award for the loss of her entire hand, the Board should have used its discretion to provide a partial award for what was amputated on her hand.

Third-party cannot offset for employer’s fault – Minnesota

In Fish v. Ramler Trucking, an employee suffered injuries while helping to load a concrete beam onto a truck being operated by an employee of another company, Ramler Trucking Inc. He received workers’ comp benefits from his employer and filed a common-law negligence claim against Ramler. A jury allocated 5% of the fault to the employee, 75% to his employer and 20% to Ramler.

Ramler argued that its liability should be limited to its 20% fault. The case made its way to the state Supreme Court, which ruled a third-party tortfeasor’s liability to an injured employee could not be reduced based on an employer’s share of the blame. An employer liable to an injured employee under the Workers’ Compensation Act and a third party liable in tort to the employee do not have common liability, whether joint or several.The benefit was limited to a credit in the amount of the workers’ compensation benefits paid to the injured employee by the employer.

High court says employer entitled to credit for amount paid in vacated settlement – Minnesota

In Block v. Exterior Remodelers Inc., an employee received a $40,000 settlement for a back injury and continuation of medical benefits. Several years later, he experienced pain related to the old injury and required further surgery. His petition to vacate the settlement was granted, but there was a question whether the employer was entitled to a credit for the $40,000 already paid.

The Supreme Court noted the settlement was done properly and an award may be set aside later if the WCCA determines that there is cause to vacate the settlement.

Authorized medical treatment still applies to out-of-state care – Nebraska

In Rogers v. Jack’s Supper Club, a worker injured her back and settled her claim, with the employer agreeing to pay for ongoing medical care. Her “Form 50” physician died and she continued treatment with the doctor’s colleague and received reimbursement. Later, when she moved to Florida the company suggested they agree to a pain management specialist, but she had already chosen one and sought reimbursement for the care she received. The company argued it was not responsible for the medical expenses since it had not approved the physician. Further, it presented evidence that she was being treated with an opioid cocktail, although this was not a factor in the legal determination. The worker argued since the designated physician had died and she moved out of state, she was free to choose her doctor.

While the compensation court approved reimbursement, the Supreme Court disagreed. A new Form 50 physician could be selected either with agreement of the employer or by bringing the matter to the attention of the compensation court.

IME testimony barred based on attempt to influence decision – New York

In Matter of Keller v. Cumberland Farms, an appellate court affirmed a decision by the state Board that precluded the admission of a medical report and testimony by an independent medical examiner (IME). The physician did not turn over to the Board a letter he received from the employee’s attorney before the medical examination and an intake form completed before the examination, which the court found to violate the law.

The worker alleged that he contracted bladder and kidney cancer from years of exposure to carcinogens while working as a diesel mechanic for the employer.

Court finds Workers’ Compensation Board’s 8-page brief limitation unreasonable – New York

In Matter of Daniels v. City of Rochester, an appellate court found that the regulation that authorizes the Workers’ Compensation Board to dismiss an application for review when a brief is longer than eight pages without an adequate explanation is unreasonable,

Proximity of termination to injury claim doesn’t mean retaliation – New York

In Matter of Peterec-Tolino v. Five Star Electric Corp., a three-judge panel of the Supreme Court affirmed a Board’s determination that an electrician was fired about one month after an injury claim for legitimate business actions. The employer had been implementing a furlough replacement program that involved laying off approximately 10 percent of its electricians and had emailed his supervisor several months before the injury suggesting he be laid off for sub-standard performance. The employee also acknowledged that prior to his injury, he was told by an employer’s representative that the employer had contacted his union looking for other qualified workers to replace him.

Surveillance nixes continuation of benefits after 18 years – Pennsylvania

In Jones v. Workers Compensation Appeals Board, a maintenance custodian for the Southeastern Pennsylvania Transportation Authority was seriously injured in 2001. The employer attempted to terminate benefits in 2015 but was denied. In 2018, the employer tried again, submitting surveillance showing the employee, a Jehovah’s Witness, pulling a large suitcase and setting up a display of pamphlets, as well as standing on the street corner and gesturing with his arms and hands without restriction, and other activities involving lifting heavy objects.

In light of the surveillance, the workers compensation judge rejected the employee’s physician’s testimony that his condition demanded restrictions of no lifting over 10 to 15 pounds, no overhead work, no constant turning of the neck, no repetitive use of the arms, and no more than four hours of work per day. A three-judge panel of the Commonwealth Court agreed that he had fully recovered from his injuries.

Two conditions must be proved for benefits – Virginia

In Sorour v. Avalon Transp., the Court of Appeals affirmed the Commission’s denial of a limousine driver’s claim for benefits following a mysterious, one-vehicle accident that occurred while the driver was “on the clock.” While the court noted that the driver had proven his injuries occurred in the scope of his employment, he had not proven that his injuries arose out of his employment.

At the time of the accident, the driver was driving in a company vehicle to the company’s office at the request of his manager and he hit a guardrail on the exit ramp. The driver failed to prove how the accident occurred and, therefore, he did not establish the causal connection between his injury and the conditions under which his employer required the work to be performed.

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 reiterates that online safety training may not meet requirements

In a standard interpretation issued earlier this year, OSHA answered the question:

Are online training programs acceptable for compliance with OSHA’s worker training requirements?

Interestingly, this standard interpretation is very similar in wording to one issued 25 years ago. While the agency acknowledges that online training is a useful component of an overall training program, it alone is not compliant. To be compliant, it must have an interactive component: employees must be able to ask questions of, and receive responses from, a qualified trainer in a timely manner. “Training with no interaction, or delayed or limited interaction, between the trainer and trainee may halt or negatively affect a trainee’s ability to understand and/or retain the training material,” according to the document.

OSHA noted that one way for the employer to give workers this opportunity in the context of computer-based training is to provide a telephone “hotline” so that employees will have direct access to a qualified trainer at the time they are taking the online training. But even that is not considered optimum by the agency in regard to certain kinds of training.

“Equally important is the provision of sufficient hands-on training because it allows an employee to interact with equipment and tools in the presence of a qualified trainer, allows the employee to learn or refresh their skills through experience, and allows the trainer to assess whether the trainees have mastered the proper techniques.” Supplementing online training with hands-on training, such as how to use a tool or don PPE, is critical.

The agency also addressed the use of safety training videos and their policy is essentially the same as that for computer-based training. OSHA urges employers not to relying solely on generic, “packaged” training programs in meeting their training requirements as site-specific elements should be included, and to the extent possible the training should be tailored to employees’ assigned duties. They also emphasized that if videos are used, an interactive component must be provided that allows the opportunity for employees to ask questions of the trainer.

It also emphasized that employers must review specific OSHA standards and related guidance to determine what is required in specific situations.

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.

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