Legal Corner

ADA 

Employee unable to wear safety shoes can be terminated

In Holmes v. General Dynamics Mission Systems Inc., a U.S. District Judge in Virginia dismissed an employee’s claims alleging violations of the ADA after she was terminated for being unable to perform the essential functions of her job, specifically, wear required safety shoes. She worked at the manufacturing facility for 18 years and was given an exemption in 2003, based on a note from her doctor.

However, the company stopped exempting her in 2013 because an outside auditor found violations of the protective footwear policy and stated that future violations could jeopardize the company’s certifications. The company did research and present alternative footwear to her and when none were acceptable, she was placed on an excused absence and encouraged her to seek custom-made safety shoes, which the company would reimburse.

After more than two years of absence and no evidence that she pursued the custom-made shoes, she was terminated.

Employer’s failure to raise “regarded as” defense results in jury award to employee

In Robinson v. First State Community Action Agency, a manager told an employee she either had dyslexia or didn’t know what she was doing and placed her on a performance plan. She sought a medical opinion about dyslexia, which was not conclusive, and gave it to her manager who gave it to HR. The HR Director told her the evaluation did not have any impact on her ability to perform essential job functions, and she was to follow the performance improvement plan and she then sought a reasonable accommodation. A few weeks later she was fired.

She sued, alleging the employer regarded her as disabled and failed to provide a reasonable accommodation and a jury agreed. The employer appealed, arguing that the jury instructions didn’t reflect changes that the ADA Amendments Act in 2008. While the 3rd Circuit agreed that the jury instruction was made in error, and “after the 2008 amendments went into effect, an individual who demonstrates that she is ‘regarded as’ disabled, but who fails to demonstrate that she is actually disabled, is not entitled to a reasonable accommodation,” the employer had waived the right to contest it because it had not opposed the use of the argument earlier.

The case is a harsh reminder of the importance of raising all possible defenses early in the litigation to preserve the rights on appeal.

Workers’ Compensation 

No liability for Six Flags in workers’ electrocution – California

In Ingram v. Six Flags Entertainment Corp., an appellate court declined to overturn a jury trial verdict that declared Six Flags was not negligent for the injuries suffered by two workers who were electrocuted while repairing a ride. Although one of the electricians thought he had deenergized the equipment at Magic Mountain, there was an arc flash explosion, which caused serious burns.

They sued the parent company, Six Flags, arguing it failed to provide appropriate personal protective equipment and made changes to its safety program after the incident. However, Six Flags has a policy that forbids working on energized electrical equipment, provides training on how to shut off power, and successfully argued to exclude its post-incident safety program changes from the trial.

Failure to return to light duty work nixes award of TPD – Florida

In MJM Electric Inc. v. Spencer, an appellate court reversed a judge of compensation claims’ decision in favor of an injured worker because the employer had offered suitable light duty work. The electrician was injured at work and saw an authorized physician, but never returned to work in spite of multiple messages from his employer that light-duty work that fell within his work restrictions was available.

After two weeks of no response, the company fired him for job abandonment. He argued he did not recognize the number and had no voice mails. The judge of compensation claims found he was not entitled to temporary partial disability benefits for the first two weeks after his accident, but he could receive disability benefits after his termination because the company failed to meet its burden of showing suitable employment opportunities. The appeals court reversed and remanded the case.

Tort suit against subcontractor can proceed – Florida

In Heredia v. John Beach & Associates, an appellate court ruled that a man working for a subcontractor can sue another subcontractor and an employee. The injured employee was working for QGS, a subcontractor doing roadwork for Lennar Homes LLC and was accidentally struck by a truck owned by another subcontractor, John Beach & Associates, that was doing surveying work.

Under the law, when a contractor sublets work to subcontractors, all employees of the contractor and subcontractors are considered employed in one and the same business and are protected by the exclusive remedy provision. However, the court found in this case, Lennar was not performing any work, was not subletting work, and therefore, was not a contractor. The case can proceed.

Average weekly wage should be based on actual earnings not pro-ration wage – Georgia

A school custodian worked a school year schedule, but had his wage spread out over a 12-month period. In Ware County Board of Education v. Taft, an appellate court ruled that his wages should be based on his contractual rate, not the lesser actual pro-rated amount he earned during the 13-weeks preceding his injury.

Supreme Court provides guidance on PTSD provisions – Minnesota

In Smith v. Carver County, the state Supreme Court reversed a decision by the state’s Workers’ Compensation Court of Appeals (“WCCA”), finding the 2013 PTSD statute does not require a compensation judge to conduct an independent assessment to verify that the diagnosis was in conformity with the Diagnostic and Statistical Manual of Mental Disorders (DSM) before accepting the expert’s diagnosis.

The case involved a deputy sheriff who resigned after 10 years and was diagnosed with PTSD by a licensed psychologist. However, an independent psychological evaluator opined that he did not have PTSD, although he had adjustment disorder with anxiety. A WCJ found this opinion more persuasive and denied the claim. The WCCA overturned, finding this opinion did not address the PTSD criteria in the latest version of the DSM.

Nonetheless, the Supreme Court reversed noting the compensation judge’s legalistic analysis of the DSM-5 was not to become a substitute for the professional judgment of psychiatrists and psychologists and the judge did not err in finding the independent evaluation more persuasive.

High court rules no fault auto insurer must pay for injured driver’s excess chiropractic charges – Minnesota

In Rodriguez v. State Farm Mut. Auto. Ins. Co., an injured bus driver received 12 weeks of chiropractic treatments, the maximum allowed under the state’s workers’ comp law. She then sought treatment from another chiropractor and payment from her personal automobile insurance policy, which denied payment based on the workers comp payments.

The case made its way to the Supreme Court, which ruled the additional care fell outside of the comp statute because it was with a separate provider whose services had never been characterized as excessive.

Jury verdict of $74.1 million upheld in worker’s death – Missouri

The Ford Motor Co. must pay the widow of a truck driver who was struck by machinery while making a delivery at the Kansas City Assembly Plant ruled an appellate court in Ford v. Ford Motor Co. The driver, who had worked for the trucking company for less than two weeks, was delivering vehicle seats, which were removed by an L-shaped pair of conveyor lines. He entered the area between the conveyor belts to manually clear a jam during seat removal and stepped into a “pinch point” between the tables and was crushed.

The company appealed a jury verdict that assigned the company 95% comparative fault for his death and awarded his widow and son $38 million in compensatory damages, and $38 million for aggravating circumstances. The appeals court disagreed and upheld the award. The company plans to appeal to the state Supreme Court.

Right to cross-examine employer’s expert wrongfully denied – New York

In Matter of Ferguson v. Eallonardo Construction, an appellate court ruled that a worker was wrongfully denied the opportunity to cross-examine the insurance carrier’s medical consultant on how the permanent impairment rating of 40% was reached. While the counsel for the injured worker did not file a competing report, the court ruled that the right to cross-examine the carrier’s consultant was not predicated upon the filing of a competing report. The only requirement is that a request be made at a hearing, prior to the judge’s ruling on the merits.

Failure to complete application sufficient for denial – New York

In Matter of Jones v. Human Resources Administration, an appellate court ruled that an attorney’s failure to fill out every section of an application for administrative review was a proper basis for the Workers’ Compensation Board to deny it. While the worker received benefits for an work-related injury, she was later denied the request to add additional consequential injuries to her claim. There was a no information in the box for question 13 of the RB-89 form, which requested hearing dates, transcripts, etc.

Heart injury hours after accident compensable – North Carolina

In Holland v. Parrish Tire Co., a three-judge panel of the Court of Appeals reversed the Industrial Commission’s decision that a worker’s heart injury that occurred hours after he was hit in the chest with a tire was not compensable. While unloading tires for a delivery, he was hit in the chest by a tire that weighed between 100 and 200 pounds. The owner transported him to an urgent care center because he had turned gray and was uncharacteristically slow, where he was sent to an emergency room. There he was diagnosed with an aortic dissection and a collapsed lung and admitted to the intensive care unit.

He underwent surgery and was told he would have a work restriction of being unable to lift more than 40 pounds indefinitely, and was diagnosed with major neurocognitive disorder due to the open-heart surgery, adjustment disorder, and depression. Later, he was rated permanently disabled and unable to work by a treating physician and filed for workers’ comp, which was denied.

The appellate court found that the commission had not adequately considered physicians’ testimony that aortic dissections could be caused by trauma.

No comp for traveling salesman for car accident after celebration with coworkers – Pennsylvania

In Peters v. Workers Compensation Appeals Board (WCAB), a traveling salesperson drove past his house on his way to a happy hour with colleagues and was injured in a car accident when returning home. Although he argued that he was traveling home from a work-sponsored event in a work van, and that as a traveling employee, his accident should be compensable, a judge, the WCAB, and the Commonwealth Court disagreed. It found that the gathering was not furthering the interest of the employer, but rather was a social gathering. Further, while a traveling employee is presumed to be within the course and scope of employment when he is driving to or from work, he had abandoned his employment by driving past his house on his way to the happy hour with colleagues.

Failure to use an automated external defibrillator not breach of duty – Pennsylvania

In Desher v. Southeastern Pennsylvania Transportation Authority, an appellate court judge affirmed a trial court ruling denying the guardian of a worker, who suffered a cardiac arrest and a subsequent brain injury at work, damages under the Federal Employers Liability Act (FELA). The guardian claimed the former employer was liable for the incident for not administering an automated external defibrillator (AED).

While the company had an AED within 100 yards of the incident, it did not use it and paramedics arrived within two minutes and used one. There was no evidence suggesting a heightened risk of cardiac events for employees or that it provide assistance in the form of an AED.

Continuing denial of opioids affirmed – Pennsylvania

In Jason Golembesky v. Workers’ Compensation Appeal Board (Worth & Co. Inc.), a manufacturing worker had been on high doses of opioid oxycodone since his injury in 2010. In 2016, the employer filed a utilization review petition, and the reviewing doctor opined that the opioid prescription was excessive. The worker filed a petition for review of the findings, arguing he had tried alternative methods of controlling the pain, which had not worked. The employer also presented evidence from an independent review doctor who noted the worker was taking massive dosages, essentially three times what is considered a high dose of morphine equivalent.

A WCJ and the WCAB found the opinions of the independent reviewers more credible than those of the worker’s providers.

More than ten years after injury, worker awarded benefits for right knee condition – Virginia

In Nanochemonics Holdings, LLC v. McKinney, a worker sustained a work-related left knee injury. More than ten years later, he filed a claim for a right knee condition. Stressing that the employer is responsible for all sequelae that flow from the primary work-related injury, an appellate court affirmed the award benefits, noting that the problem was caused, at least in part, by an altered gait brought about by his earlier left knee injury. While it acknowledged that the worker was morbidly obese, this did not amount to a sufficient break in causation.

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

Insights from OSHA’s recently released enforcement summary

While many anticipated a relaxing of OSHA’s enforcement actions under the Trump administration, the recently released enforcement summary tells a different story. There were 32,023 federal inspections in FY 2018, a number that has remained relatively stable over the past three fiscal years. The continued aggressive inspection strategies under the Trump administration has confounded many. There’s been a record number of $100,000+ citations, higher penalties, continuing increase in willful and repeat citations, as well as worker safety criminal prosecutions; yet, the number of inspectors has declined raising concerns of safety advocates. Also, the figures are for federal inspections. OSHA only covers about 50% of employers-state plans handle enforcement in the private sector in 22 states. State plans must be as effective as federal OSHA, but some states, such as California, have adopted stricter standards.

The enforcement summary provides valuable insight into what triggers an inspection. Over 56% of the inspections were unprogrammed inspections. These include employee complaints, injuries/fatalities, follow up inspections, and referrals. In FY 2018 (Oct. 1, 2017 – Sept. 30, 2018), OSHA conducted 941 fatality/catastrophe investigations, the highest number of such investigations in more than a decade and a 12.4% increase from 2017.

Employee complaints triggered 41% (7,489) of the unprogrammed inspections and over 23% of all inspections. Under the OSHA Act, every employee has the right to complain to OSHA and request an inspection, if they feel there is a violation of a health and safety standard. OSHA does not have the resources to conduct an inspection for every complaint, but evaluates each complaint to determine how it can be handled best – an off-site investigation or an on-site inspection. For an on-site inspection, at least one of eight criteria must be met.

Referrals prompted 6,463, about 36% of unprogrammed inspections and 20% of all inspections. Theses encompass all subtypes of referrals such as those received from compliance safety and health officers, safety and health agencies, other city/county/state/federal governments, media, and employer-reported.

A programmed inspection occurs when the inspection is scheduled because of OSHA selection criteria, such as emphasis programs or compliance directives. They tend to focus on the industries and operations where known hazards exist (e.g., combustible dusts, chemical processing, ship-breaking, falls in construction are some examples), including those that fall under an OSHA emphasis program, and accounted for 44% of the inspections.

In October, the agency launched a Site-Specific Targeting program using data from 2016 Form 300A to target non-construction workplaces with 20 or more employees. While workplaces with high DART rates and those that did not submit the required data are OSHA’s primary enforcement focus, there is also a random sample of low injury rate establishments on the inspection list for quality control purposes. What’s important to know is that these inspections are comprehensive – they are wall-to-wall.

Employer takeaway: While the data provides clues as to the situations that will trigger an inspection, all employers should recognize an inspection can be random and be prepared. If there’s been a fatality or catastrophic injury at a worksite, a legitimate employee complaint, a referral, or a previous inspection with citation, an inspection is likely.

In addition, those industries subject to local (LEP) or national emphasis programs (NEP) and worksites with high DART rates are more vulnerable. It’s important to know the criteria for LEP’s and NEP’s. If OSHA shows up for an inspection at a workplace under one of these programs when the company doesn’t fit the criteria, the employer has a right to refuse the inspection.

Employers should be cognizant of the high number of inspections prompted by employee complaints. Managers who are dismissive of safety concerns or hostile toward those who raise them expose the company to costly consequences. Those who foster a strong safety culture and encourage feedback are less likely to receive complaints or be cited by OSHA.

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

Legal Corner

Workers’ Compensation 

WCAB does not have authority to overturn award of medically necessary housekeeping services – California

When housekeeping services are requested by a physician and are reasonably required for an injured worker, they qualify as medical treatment. As such, the Court of Appeals for the 2nd District ruled that if a physician makes a request for a medical treatment, an employer cannot deny it unless a utilization reviewer determines that it is medically unnecessary.

In Allied Signal Aerospace, Constitution State Service Company v. Workers’ Compensation Appeals Board and Maxine Wiggs, the injured worker was receiving housekeeping services twice a month, but the physician requested a change to every week. The company submitted the request to utilization review. The reviewer found the more frequent schedule was not medically necessary. However, the WCAB supported a judge’s ruling to submit the records to a registered nurse who had made an earlier assessment of need for review.

The 2nd DCA vacated the WCAB’s ruling noting that since there was no stipulation to displace the provision of housekeeping from the UR-IMR process, the WCAB had no jurisdiction to review the medical necessity and reasonableness of service.

Exclusive remedy bars personal injury claim by firefighter kicked in the groin by supervisor – California

In Tibbett v. Los Angeles County Fire Department an appellate court affirmed a jury’s ruling that a firefighter’s unintentional injuries were barred by the exclusive remedy of workers’ compensation. The incident occurred when the firefighter complained to a supervisor about how a situation with a hostile victim was handled. The fire captain said he was showing a maneuver to keep volatile patients away by obstructing their vision, but the firefighter moved and he kicked him in the groin with a steel-toed shoe.

The firefighter had emergency surgery to remove his left testicle and underwent more surgeries that rendered him sterile. The court agreed with the jury, finding the fire captain did not intend to harm the firefighter; therefore, workers’ comp was the exclusive remedy.

Challenge to the presumption of correction for the opinions of EMAs rejected – Florida

In De Jesus Abreu v. Riverland Elementary School, the 1st District Court of Appeal rejected a constitutional challenge to the statutory presumption of correctness for the opinions of expert medical advisers (EMA). The employee suffered a compensable injury to her shoulder and an arthroscopic shoulder surgery was performed to address a partial rotator cuff tear.

While the physician deemed she had reached MMI, she continued to report pain and she sought care from an unauthorized orthopedic physician who recommended further surgery. The company authorized another orthopedist, who did not recommend further surgery. However, the employee obtained an IME from a doctor who thought surgery was appropriate.

Because of the conflicting opinions, a JCC appointed an EMA who opined that no further surgery was recommended or medically necessary. The JCC denied surgery because state statutes provide that the opinion of an EMA is presumed to be correct unless there is clear and convincing evidence to the contrary.

The employee appealed, arguing that the presumption improperly usurps the rulemaking authority of the state Supreme Court and that the presumption interferes with the executive branch’s ability to fairly adjudicate workers’ compensation claims. The court disagreed.

Restaurant manager shot in off-hours robbery can receive benefits – Georgia

In Kil v. Legend Brothers, the Court of Appeals overturned a denial of benefits to a restaurant manager who was shot as he was arriving home from work with the day’s receipts, which he regularly reviewed when he got home. The worker lived with the restaurant owner and his coworker. When he arrived home with his coworker, they were attacked by three men who demanded money. When the attackers realized the worker had a gun, they fled, but shot him in the forearm and he has not been able to work.

Both an administrative law judge and later the state Board of Workers’ Compensation awarded him comp benefits, ruling that his injury arose within the scope and course of employment. However, a state superior court reversed, finding that he was not at work at the time of the armed robbery and shooting-that he was home and that he was shot because he had a gun, which “had nothing to do with performing his duties for his employer.”

The Court of Appeals disagreed, noting one of the worker’s key job responsibilities was to spend around an hour every day going over the restaurant’s daily sales, receipts, accounts and inventory and that he was continuing his duties as manager.

Insurer must pay for injuries despite misinformation in policy – Georgia

In Grange Mutual Casualty Co. v. Bennett, several mistakes were made when an insurance agent took the company’s business information from its policy with a former insurer. She misclassified the company that was a construction company involved in greenhouse repair and maintenance as providing janitorial services and erroneously noted that employees did not travel out of state and that workers did not perform work above 15 feet. While the owner signed the policy, there was a dispute whether it was complete at the time.

When an injury that occurred out of state was denied, the company told the agent the policy had to be changed because most of its business was out of state. When the insurer learned more about the business operations it said it would not have issued the policy if the application had correctly stated that the company operated in 30 states because Grange Mutual was not licensed to issue policies in all of those states. It sent a cancellation notice but gave the company 90 days to find an alternative.

In less than 90 days, another worker was injured out of state, suffering extensive injuries in a truck accident. An administrative judge held that Grange Mutual’s policy covered the employee’s injuries and that by agreeing to pay for workers’ comp claims under the laws of Georgia, the Georgia-based company’s workers were covered even when out-of-state. Further, an appellate court held that Grange Mutual waived its void policy defense when, after discovering the inaccurate information on the application, it informed the company that its coverage would continue for 90 days. The court said that if the insurer “believed that the policy was void based on fraud, it should have immediately rescinded it.”

Borrowing employer’s immunity from tort liability not dependent on insurance – Illinois

In Holten v. Syncreon North America, an appellate court ruled that a temporary staffing service’s employee could not pursue a negligence suit against his borrowing employer for work injuries. The worker received comp benefits from the staffing agency for injuries resulting from a forklift accident, but filed suit against the borrowing employer, asserting its negligence had led to his injuries.

The state Workers’ Compensation Act provides that the lending and borrowing employers are jointly and severally liable for workers’ compensation benefits, but both do not have to provide the insurance. As long as one of the employers pays benefits, both have civil immunity. The immunity springs from the borrowed-employee relationship itself.

Employee can sue Canada – Massachusetts

Federal law immunizing foreign governments from liability does not protect Canada from being sued as an uninsured employer under the state’s workers’ compensation statute for injuries suffered by a consulate employee in Boston, the 1st U.S. Circuit Court of Appeals ruled in a 2-1 decision. In Merlini v. Canada, the Court found that the Foreign Sovereign Immunities Act provides an exception to immunity for a foreign state that engages in a “commercial activity.” The court said Canada entered into a contract for commercial services by hiring Merlini and failed to carry workers’ comp insurance as required of commercial employers in the state.

Worker who resigned after injury can collect unemployment – Minnesota

In Interplastic Corp. v. Rausch, a long-time employee injured his back and was transitioned to a lower job but received the same wage and accompanying pay raises over the next three years. He was then notified his wage was being reduced to align with the position and he was ineligible for future raises. About the same time, the workers’ compensation claim was settled and he received a $25,000 payout and agreed to “voluntarily terminate his employment.”

When he applied for unemployment benefits, he was denied because he had voluntarily quit. However, a three-judge appellate court panel affirmed an unemployment law judge’s decision that a substantial pay reduction, the lack of future earnings potential, and the claim settlement allowed the worker to fall under the state’s statutory exception for unemployment eligibility.

Worker’s manufacture of meth does not forfeit comp benefits – New York

In Robert Stone v. Saulsbury/Federal Signa et al., an appellate court ruled that a worker’s conviction for manufacturing methamphetamine did not forfeit his entitlement to benefits for two industrial injuries. The court upheld the WCB ruling that the man who had been collecting indemnity benefits for a compensable injury prior to his conviction and incarceration did not violate state workers’ compensation laws when he became involved in the production of illegal drugs.

The insurer contended that the manufacture of methamphetamine constituted “work”. The court disagreed, “substantial evidence supports the Board’s finding that the conviction alone is insufficient to establish any work activity by claimant or that he received any type of remuneration.”

Denial of occupational disease does not prevent new theory of accidental injury – New York

In Matter of Connolly v. Covanta Energy Corp., an appellate court reversed the state Workers’ Compensation Board’s finding that a worker suffered from an occupational disease (allergic bronchopulmonary aspergillosis) and remitted the matter to the Board for further proceedings. However, this would not prevent the worker from arguing an accidental injury claim on essentially the same facts. After remand, the Board was free to consider the new theory for the claim.

Elimination of labor attachment requirement for PPD not retroactive – New York

In Matter of the Claim of Scott v. Visiting Nurses Home Care, a worker who was classified as having a permanent partial disability, was found to have voluntarily withdrawn from the labor market and benefits were suspended twenty-two years after her injury. In 2017, the law was amended to provide that proving attachment to the labor market was no longer necessary for permanent partial disability compensation.

After the amendment took effect, she filed a request for reinstatement of benefits. A law judge, the Board, and the Appellate Division’s 3rd Department all agreed that the amendment did not apply retroactively.

Failure to mention side business not fraud – New York

In Matter of Permenter v. WRS Envtl. Servs. Inc., a truck driver’s failure to disclose his involvement in an online and retail flower business was not the sort of misrepresentation that should disqualify him from receiving workers’ compensation benefits according to an appellate court ruling. The employee had freely admitted that he owned a company engaged in the flower business, but the employee did not consider it work because it was not profitable.

Termination of benefits OK for a minor physical deformity, but no physical impairment – Pennsylvania

In Paolini v. Delaware County Memorial Hospital, the Workers’ Compensation Appeals Board held that the workers’ compensation judge (WCJ) did not err in awarding benefits to a nurse who sustained physical injuries and post-traumatic stress disorder as a result of a dog bite while performing a home visit. Her doctor provided unequivocal medical testimony that she had sustained PTSD as a result of her work injury, even though her Facebook page showed her swimming and parasailing.

However, the board reversed the WCJ’s denial of the employer’s termination petition, as the employer’s examining physician found that although the nurse had slight discoloration and subjective, mild numbness, she had fully recovered from the physical dog bite.

Injuries incurred on railroad bridge not covered by longshore comp – Virginia

In Muhammad v. Norfolk Southern Railway Co., a three-judge panel of the 4th U.S. Circuit Court of Appeals reversed and remanded a district court’s holding that the worker’s negligence claim was barred by the exclusive remedy under the Longshore and Harbor Workers’ Compensation Act (LHWCA). While working on a bridge that crosses a navigable river, a portion of the walkway collapsed beneath the employee and he sustained serious injuries.

He filed suit against the railway, asserting a negligence claim under the Federal Employers Liability Act, but the company argued the claim was subject to the LHWCA. The district court agreed, finding repairing and rebuilding the bridge was an “essential and integral element” of the maritime traffic flowing under the bridge, therefore, his work constituted as engaging in maritime employment.

Upon appeal, the 4th U.S. Circuit Court of Appeals reversed and remanded the district court’s decision. It noted that the LHWCA requires employee work “upon navigable waters” and that a bridge would not be covered by the statute.

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

OSHA watch

Controversial ruling on Process Safety Management Standard being appealed

A controversial ruling by the Occupational Safety and Health Review Commission (OSHRC) that extended the Process Safety Management Standard beyond hazardous chemicals has been appealed by Oklahoma-based Wynnewood Refining Co. LLC and its successors, the refinery at the center of the ruling. The OSHRC affirmed citations under the standard, even though the explosion occurred at one of the refinery’s boilers, an onsite utility operation workplace that safety and legal experts say is typically not included in process safety management.

The case was appealed to the 5th U.S. Circuit Court of Appeals.

Free online course on preventing workplace violence

The Muskie School at the University of Southern Maine launched a free online programto train retail workers and employers on preventing and responding to violence in the workplace. The course offers tips on how to respond to violence or the threat of violence by reading body language and using de-escalation techniques, and how to establish a workplace violence prevention program. Participants may register and complete the training at their own pace.


New resources

Alerts:

Webpages:

Flyer:


Solar panels do not qualify as roofing work

The United States Court of Appeals for the Ninth Circuit in San Francisco denied a petition to review an Occupational Safety and Review Commission’s final order affirming a citation for violating fall protection standards. Bergelectric was hired to install solar panels on the roof of a hanger in San Diego and argued that the installation was on a low-sloped roof, which has laxer standards than work on unprotected sides and edges. The court determined that the installation of solar panels did not qualify as performing “roofing work” and so Bergelectric violated the fall standard because they failed to use personal fall arrest systems, safety nets or guardrails.


Enforcement notes

California

  • USF Reddaway Inc, a trucking company received four citations and $68,438 in penalties after a worker was fatally struck by a tractor at a truck terminal. Inspectors found that the company failed to ensure operators were competent to operate terminal tractors and did not implement traffic controls.
  • Anaheim-based Nexus Energy Systems Inc., a solar panel installer, faces fines totaling $193,905 for multiple serious workplace safety hazards, including failure to provide fall protection for its employees. One worker fell and suffered a broken wrist and jaw.
  • Hanwha L&C USA, LLC received eight citations and $52,705 in penalties after a forklift crushed a worker’s foot. Citations related to training and evaluating workers.

Florida

  • GA&L Construction Corp. Inc. and The Rinaldi Group of Florida LLC were cited for failing to protect employees from fall hazards after a fatal fall at a construction worksite in Miami. The two companies face $87,327 in penalties.
  • Duda Farm Fresh Foods Inc., based in Belle Glade was cited for exposing employees to workplace safety hazards after a worker required medical treatment due to an anhydrous ammonia leak in the farm’s packaging house. The company faces $95,472 in penalties. The inspection is covered under the National Emphasis Program on Process Safety Management Covered Chemical Facilities.
  • National discount retailer Dollar Tree Store Inc.was cited for exposing employees to safety hazards at its store on Southern Boulevard in West Palm Beach. The company faces $104,192 in penalties for exposing employees to struck-by, trip, and fall hazards due to unstable merchandise stacked in excess of 7-feet high in the path of an emergency exit.

Georgia

  • Evoqua Water Technologies LLC, based in Thomasville, was cited for failing to protect employees working in excessive heat. An employee suffered heat exhaustion and was hospitalized after working in direct sunlight and wearing required protective clothing during welding and fabrication work at a Key West, Florida worksite. The company faces $21,311 in penalties, including the maximum penalty allowed by law for the heat-related violation.
  • An appeals court denied a review of citations issued to Century Communities Inc. for a fatal electrocution at a residential construction site. Although none of its employees were exposed to the hazard, Century was cited under the multi-employer worksite policy.

Illinois

  • Residential homebuilder Florentino Rodriguez of DB Custom Carpentry LLC was cited for exposing employees to falls at a residential site in Wheaton. The contractor faces penalties totaling $196,905 for one serious and two willful safety violations.

Nebraska

  • Discount retailer Family Dollar Store was cited for safety violations at an Omaha store, including failure to secure compressed gas cylinders, follow manufacturer’s instructions when using electrical apparatus, ensure emergency exit doors remain unlocked, cover overhead lights, and allowing equipment to block an exit route. Proposed penalties are $302,147.

Pennsylvania

  • Energy Transportation LLC and MW Logistics Services LLC were cited for serious safety violations after a fatal fire at a natural gas processing plant in Houston. Energy Transportation LLC, the company contracted to clean lines and vessels at the plant faces penalties totaling $51,148. MW Logistics Services LLC, the host employer, faces $47,360 in penalties. Both were cited for violations of the PSM standard.

For additional information.

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

“At-will employee” no defense for firing an employee after reporting a safety hazard

The U.S. District Court of the Eastern District of Pennsylvania recently denied an employer’s motion to vacate a jury’s award of punitive damages to a former employee of an iron-casting company who claimed he was terminated for reporting alleged safety and health hazards. When no corrective action was taken after he repeatedly complained about a roof leak that leaked directly into an electrical box and created a slipping hazard, he filed an anonymous complaint with OSHA.

The agency conducted an unannounced inspection and a few days later he was fired. He then filed a whistleblower complaint with OSHA that found Hamburg, Pennsylvania-based Fairmount Foundry fired him in retaliation for engaging in a protected activity under Section 11(c) of the Occupational Safety and Health Act. In Acosta v. Fairmount Foundry Inc., a jury awarded $40,000 for lost wages, pain and suffering and punitive damages to the former employee, Zachary Zettlemoyer.

The company argued the jury had not been instructed on at-will employment and another trial was warranted. But the court denied it. “Even if we gave an at-will employment instruction explaining Mr. Zettlemoyer could be terminated for any reason or for no reason at all, Fairmount Foundry could not have terminated him for engaging in protected activity,” the judge stated. “Fairmount Foundry does not explain how an instruction on at-will employment prejudiced it and, given our charge on the elements of a retaliation claim and pretext, we see no prejudice.”

Moreover, in response to a motion by the Department of Labor, the court awarded prejudgment interest on the $25,000 back pay award and ordered Fairmount Foundry to reinstate Mr. Zettlemoyer. It also permanently enjoined Fairmount Foundry from violating Section 11(c) and ordered Fairmount Foundry (to) expunge from Mr. Zettlemoyer’s personnel record any adverse reference to discharge on October 8, 2015; post a court-approved anti-retaliation notice in a common area for a period of sixty days; and provide a neutral reference regarding Mr. Zettlemoyer’s employment, if requested by subsequent employers.

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

Things you should know

‘Safety at Heights’: ISEA launches campaign on fall protection, dropped objects prevention

ISEA’s SafetyAtHeights.org website provides educational resources for employers and workers, including:

  • Facts about dropped objects and workplace deaths and injuries
  • A list of job hazards that workers and employers should be aware of
  • Downloadable PDFs of ISEA and ANSI safety standards
  • Links to more than a dozen online safety resources

Proposed rule to amend trucker hours-of-service regs slated for publication in June

A proposed rule intended to add flexibility to the Federal Motor Carrier Safety Administration hours-of-service regulations for commercial truck drivers will be published in early June, according to a Department of Transportation regulatory update released in May.

ISHN magazine publishes 2019 Readers’ Choice Award winners for best PPE and safety equipment products

For the seventh year in a row, the Industrial Safety and Hygiene News published its Readers’ Choice Awards for the best occupational health and safety products from 2019.

Stressed out: Survey shows almost half of workers have cried at work

Work-related stress has driven nearly half of full-time employees in the U.S.to tears, results of a recent survey, 2019 Behavioral Health Report, show. Researchers from Ginger, an on-demand behavioral health services provider, assessed more than 1200 workers’ experiences with behavioral health and their employer-provided benefits. 48% of survey respondents said on-the-job stress has made them cry at work. In addition, 83% said they experienced stress at work at least once a week.

Among workers younger than 40, 45% reported “extreme stress” – defined as experiencing stress on a daily basis. Women were more likely to cry at work, but 36% of men acknowledged crying at work because of stress. Generation Z and millennials are more likely to miss work because of stress.

Reattaching to work before clocking in may improve engagement, health: study

Visualizing and planning for your workday may lead to better engagement and well-being, results of a recent study indicate.

Food truck safety resources spotlight propane hazards

WorkSafeBC has published a safety bulletin and blog post intended to help food truck owners and workers avoid hazards associated with propane tanks.

State News

California

  • Findings from The Workers Compensation Research Institute (WCRI) CompScope Benchmarks for California, 19th Edition, showed higher litigation expenses than other states. Total costs per all paid claims were higher than most study states for 2015 claims with an average of 36 months of experience, mainly driven by a higher percentage of claims with more than seven days of lost time.

Florida

  • Florida Gov. DeSantis signed into law a bill that allows firefighters diagnosed with any of 21 types of cancer to receive disability and death benefits outside of the workers’ compensation system. Senate Bill 426 will allow firefighters to receive medical treatment for their condition with no out-of-pocket expenses.
  • The WCRI CompScope Benchmarks for Florida, 19th Edition, shows that two 2016 Supreme Court decisions continue to affect the workers compensation system, but despite an uptick in indemnity benefits per claim, the comp system costs are in line with other states. The cost driver for the increase in indemnity benefits was a jump in lump-sum settlement payments per claim.

Illinois

  • The Workers’ Compensation Commission launched a new case docket website, which was built to work on mobile devices and tablets.
  • The Governor has signed into law Senate Bill 1596, which will allow tort claims to be filed after the state’s occupational-disease statute of limitation expires.
  • The WCRI CompScope Benchmarks for Illinois, 19th Edition, shows the average total cost of a workers’ compensation claim remained higher than most states, driven by high attorney involvement and high medical-legal costs. The report also shows more lump-sum settlements than most other states, and the share of claims paid in lump sums continues to rise every year.

Indiana

  • A new law, H.B. 1341, increasing the maximum penalty to $132,598 from $70,000 for each worker death resulting from an employer knowingly violating safety regulations, goes into effect July 1.

Massachusetts

  • Two key deadlines critical to the implementation of the Massachusetts Paid Family Medical Leave law (PFML) have been extended. Employers have until June 30, 2019 to provide written notice to covered individuals of their rights and obligations under the PFML. Also, businesses will now have until September 20, 2019 to file an application for a private plan exemption.
  • Massachusetts’ workers’ compensation fraud investigators in 2018 referred 256 cases for prosecution, the most ever in a single year, according to a local news station.

Michigan

  • Medical marijuana is now available to patients immediately after receiving online approval. The approval email may be used as a temporary substitute for a valid registry card in order to obtain their medication.
  • Michigan’s attorney general launched a new enforcement unit to prosecute worker misclassification and wage theft by employers.
  • Michigan State University College of Human Medicine has launched a campaignintended to raise awareness of work-related asthma.

Minnesota

  • The Workers’ Compensation Division released a draft of the latest implementation guideline for its electronic data interchange, which is expected to be mandated in August 2020.
  • Minneapolis’ Sick and Safe Ordinance extends to any employee who performs at least 80 hours of work per benefit year in the City of Minneapolis, even if his or her employer is not located within the city’s limits, the Minnesota Court of Appeals has held in Minnesota Chamber of Commerce v. Minneapolis.

Missouri

  • The Department of Labor and Industrial Relations Division of Workers’ Compensation (DWC) continues to expand the use of Box Account, a virtual mailbox. The Attorney General’s Labor Unit recently began using Box to file Answers to Workers’ Compensation Claims filed by injured state employees.

New York

  • New York City has enacted a law prohibiting New York City employers from requiring prospective employees to submit to testing for the presence of tetrahydrocannabinol (THC), the active ingredient in marijuana. The new law, the first of its kind in the United States, became effective on May 10, 2019.

Pennsylvania

  • The WCRI CompScope Benchmarks for Pennsylvania, 19th Edition, showed the average total cost of a workers’ compensation claim is among the highest of 18 states studied, with litigation costs a key driver of higher overall benefit delivery expenses.

Tennessee

  • A new amendment to Tennessee’s Healthy Workplace Act may offer employers protection from lawsuits for mental anguish. The new amendment became effective April 23rd when Governor Bill Lee signed H.B.856 into law expanding coverage to include private employers.

Wisconsin

  • By executive order, the Governor has authorized the creation of a joint enforcement task force on payroll fraud and worker misclassification. The DWD’s Worker Classification website is available here.

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

OSHA watch

Regulatory agenda

The 2019 Regulatory Agenda had no surprises in its short-term regulatory docket but in the long-term schedule there was a surprise announcement about rulemaking activity for “Drug Testing Program and Safety Incentives Rule.” The proposed rule would solidify in a new standard the current position that the electronic record-keeping rule does not prohibit employers from establishing workplace safety incentive programs or post-incident drug testing. Other items on the long-term list, which means action is not expected in the next 12 months, include: musculoskeletal disorders injury and illness recording and reporting requirements, infectious diseases, process safety management and prevention of major chemical accidents, and shipyard fall protection and personal protective equipment in construction.

Additional regulatory actions under consideration:

RULE ANTICIPATED AGENCY ACTION
Beryllium rule for general industry Final rule December 2019
Communication Tower Safety Complete SBREFA May 2019
Emergency Response Initiate SBREFA May 2019
Lockout/Tagout Request for Information May 2019
Tree Care Initiate SBREFA June 2019
Update to the Hazard Communication Standard Notice of Proposed Rulemaking September 2020
Prevention of Workplace Violence in Health Care and Social Assistance Initiate SBREFA October 2019

For the full federal Unified Agenda and Regulatory Plan

Mugno withdraws from consideration

Re-nominated for Assistant Secretary of Labor for OSHA on January 16, Scott Mugno has withdrawn his name from consideration, extending the longest period without a permanent administrator.

Final rule expected to save $6.1 million as part of the Standards Improvement Project

The rule revises 14 provisions in the recordkeeping, general industry, maritime, and construction standards that may be confusing, outdated, or unnecessary. Reducing annual lung X-ray requirements, eliminating the collection of employee Social Security numbers and removing feral cats from the list of “rodents” in shipyard sanitation standards are among the 14 revisions.

Noteworthy the controversial proposal to revise the scope provision of the LOTO standard to remove the term “unexpected energization” as a prerequisite for the requirements of the LOTO standard was not included in the final rule.

More information.

Comments for possible update of lockout/tagout solicited

Comments on a possible update to the Control of Hazardous Energy (Lockout/Tagout) standard must be submitted before August 18. Emphasis is being placed on how employers have been using control circuit devices and new risks of increased worker contact with robots.

Noteworthy, the RFI does not mention the controversial “unexpected energization” but that does not mean it’s dead. The regulated community voiced opposition in the SIP IV process.

More information.

Webpage provides information on protecting workers from CMV exposure

A common virus, Cytomegalovirus (CMV), affects thousands of workers in childcare centers and healthcare facilities. These workers are at the greatest risk of exposure because the virus is often spread through saliva and other body fluids of young children. A new webpage on CMV, explains how to minimize health risks associated with workers’ exposure to this virus.

New oil and gas exploration safety video

video developed by a Training Institute Education Center features ways to prevent injuries and fatalities in the oil and gas industry. The video focuses on falls, transportation, struck-by/caught-in/caught between, hydrogen sulfide gas, and heat illness.

Enforcement notes

California

  • Morgan Hill, California-based Pacific States Industries Inc., doing business as Redwood Empire Sawmill, settled a civil lawsuit regarding workplace safety laws following the death of a mill worker. The company agreed to pay civil penalties, restitution, and costs totaling $375,000.
  • Mercer-Fraser Co of Eureka received four citations and $63,560 in penalties after a worker driving a truck collided with a front-end loader and suffered a serious head injury. Inspectors determined that the company failed to require seat belt use, develop and implement safe practices for workers operating haul trucks, and ensure that trucks were operated at safe speeds.
  • Carlton Forge Works received three citations related to crane operations and $51,185 in penalties when a worker suffered injuries after becoming pinned between a saw table and a workpiece.

Florida

  • After an employee suffered serious injuries from a fall at the Avery Square residential construction site in Naples, four residential construction contractors received 12 citations and fines totaling $220,114 for exposing employees to safety hazards. Southern Living Contractors Inc., Paramount Drywall Inc., operating as Paramount Stucco LLC, and Crown Roofing were cited for failure to provide fall protection and other violations and Sunny Grove Landscaping and Nursery Inc. was cited for exposing employees to struck-by hazards from falling debris.
  • Inspected under the Regional Emphasis Program for Falls in Construction, Ohio-based Hiebert Bros. Construction LLC was cited for exposing employees to fall hazards after the worker was injured from a 26-foot fall at a construction worksite in Gainesville. The company faces penalties of $56,828.
  • Walt Disney Company has been fined $13,260 for failing to report two workers’ injuries in a timely manner.
  • Two citations alleging serious violations of the fall protection standard were confirmed against All-Pro Construction Services Inc., which had a pleaded the affirmative defense of unpreventable employee misconduct. The fine was reduced 10% to $8,149.
  • An online retailer of pet supplies, Chewy, Inc., faces the maximum penalty of $14,323 for exposing employees to struck-by and crushing hazards. An employee suffered fatal injuries while operating a stand-up industrial truck at the company’s Ocala plant.
  • Remodeling contractor, Stettinius Construction Inc of Winter Haven, faces $26,142 in proposed penalties after a worker suffered a fatal fall at a worksite in Naples.

Georgia

  • Kumho Tire Georgia Inc., Sae Joong Mold Inc., and J-Brothers Inc. received 22 citations and collectively face $523,895 in proposed penalties after a follow-up inspection found safety and health hazards at the tire manufacturing facility in Macon. $507,299 of the proposed penalties were issued to Kumho Tire Georgia Inc., which failed to submit abatement documents and was placed in the Severe Violator Enforcement Program.

Missouri

  • DDG Construction Services Inc., based in Charlotte, North Carolina, faces $98,693 in penalties for exposing workers to fall hazards at a commercial site in Springfield. The company has been cited for more than 15 fall violations since 2014.
  • Belfor Property Restoration and subcontractor Custom Crushing & Company, both based in Kansas City, were cited for failing to comply with asbestos removal standards while performing rehabilitation work at Kansas State University’s Hale Library in Manhattan. Custom Crushing & Company faces $193,596 in proposed penalties, and Belfor Property Restoration faces proposed penalties totaling $39,780.

New York

  • In Secretary of Labor v. All Wall Builders LLC, a judge held that East Syracuse-based All Wall Builders LLC had committed a serious safety violation of the fall protection standards. After the company agreed to participate in a voluntary state site inspection program and followed up with recommendations on further training, the judge reduced the proposed penalty by $1,622, bringing the total penalty to $5,622.

Nebraska

  • After two employees were seriously injured in a trench collapse at a construction site in Lincoln, T.H. Construction Co. was cited with one willful violation of trench safety standards and faces $106,078 in penalties.
  • A steel erection company, Daubert Construction, based in Fremont, was cited for failing to protect employees from fall hazards and faces $19,890 in penalties.

Pennsylvania

  • A general duty citation against Johnstown-based Berkebile Auto Service Inc. after a tow truck driver was fatally injured was upheld by an administrative law judge of the Occupational Safety and Health Review Commission. The company was assessed a $3,803 penalty.
  • Champion Modular Inc. was cited for exposing employees to safety and health hazards at its Strattanville facility. The company faces $687,650 in penalties. The inspection was initiated after an employee suffered an amputation. Violations related to machine guarding, fall protection, and training workers on hazard communication and hearing conservation.

For additional information.

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

5 ways to make visual communication more effective

Much has changed in the area of safety communications. Gone are the days when wordy messages printed on paper with a burst of color sufficed. The channels for communication are many, including email, signage, bulletin boards, intranet, tool talks, meetings, apps, videos and so on. Furthermore, workers from different generations have different communication preferences. So it’s understandable that employers struggle to simplify their workplace communication and keep it relevant.

Here are 5 suggestions:

  1. MessagingSafety communications must resonate with workers or they will be forgotten or ignored. Know your takeaway and keep it simple. Focusing on real-life incidents with the use of visuals and a few powerful words that engage emotions is most impactful. Not only are they remembered longer, they are more visible from a further distance and reach a multi-language workforce. This contrast in messaging was shown in a recent webinar by The Marlin Company.
  2. Keep it fresh and repeatEven the best messaging gets stale. A cardinal rule in advertising known as the Rule of Seven says that a prospect needs to see or hear your marketing message at least seven times before they take action and buy from you. Using different channels can help convey a consistent message in different ways, but not all workers have access to email and their smartphones during working hours. Signage is often a solution.

    Yet over time, static signage can have a wallpaper effect – present but unseen. Digital signage offers great opportunities here. It is easily changed, software updates can be done for multiple locations, and employers aren’t dependent on personnel physically rotating signs. Multiple screens enable employers to target groups of workers and display unique content for the area in which they work. Messaging for call center personnel can differ from those in production.

  3. PlacementWhile proper placement seems like a no brainer, employers commonly get it wrong. Signs that are too far from a hazard aren’t effective because employees may not be able to see the hazard, making it easy to ignore. If a sign is too close to a hazard, employees may not have enough time to take precautions. And they need to be at eye level and not obscured.
  4. Be strategic 
    • Too much communication can send mixed messages and be confusing. Workers can ignore all of it because it’s just too much to take in at one time, or simply not really see it because something else caught their attention.
    • Keep it short. Unless there is a captive audience, videos should be less than a minute. Think of them as a commercial. Emails and texts should be concise and clear.
    • If there is a captive audience and a PowerPoint is used, put one topic or idea on each slide with appropriate graphics, then talk about it in plain language. Don’t read from the slides.
    • Be selective about the messaging you use in places where employees gather -breakrooms, cafeterias or time clock areas. Promoting health and wellness programs, recognizing employees, information on company events, and appropriate humor can be appropriate here.
  5. Have workers contribute contentTap experts on staff and use them in your messaging. It’s often been said that Millennials are the selfie generation and that the sweet spot to reach Millennials is a 30 – 60-second video, particularly if they are in it. But workers of all ages value recognition even though most are reluctant to step forward and volunteering to participate is not human nature. Invite workers to share stories from their own work histories about how following a safety practice protected them or a co-worker – or near misses or mistakes that could have been prevented. Stories are memorable.

Case study:

An article in the March issue of Risk and Insurance told the story of the Vermont School Board Insurance Trust (VSBIT) challenges of frequency and costs of claims related to snowy weather and icy paths. Shoveling and salting sidewalks were only as effective as the staff involved and the commitment of leadership to safety.

After exploring solutions, they embarked on a pilot program at 10 schools, placing signage at every entrance and exit, alerting passersby of icy conditions. A small mechanism would change colors – from silver to blue – when temperatures dropped below 37 degrees (car warning start at 37 degrees because icy conditions are not always obvious).

These schools had 39 losses that cost almost $240,000 the prior 5 years. After implementation, the same schools had only one slip and fall in total. The feedback from member schools was all positive and the program is expanding.

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