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

Workplace safety: an untapped tool to attract and retain skilled workers

It’s easy for employers to be complacent about Workers’ Compensation when rates are declining and workplaces are safer overall. There are more pressing business matters in today’s competitive market, such as attracting and retaining skilled and committed workers. But failure to relate the two is a lost opportunity and complacency is a slippery slope to higher costs.

A strong safety record reflects positively on the quality of management, supervision, and all employees. While there are individual and generational differences in what attracts workers to a company, there are common denominators. Trust, respect, involvement, clear goals and expectations, engaged management, collaborative working environment, and recognition are regulars on the lists of most desirable workplace characteristics. All of these are integral to a sustainable safety culture.

There is one value everyone can share: to go home without an injury. Use it to tell your story. While the message, “we value and care about our employees,” is often boasted, it’s met with skepticism. The opinion that production and profit trump safety is still pervasive among many employees.

To combat this attitude, safety must become everyone’s responsibility. Management must walk-the-talk and model the safety behavior they expect from employees, as well as empower employees to voice their concerns and take it upon themselves to improve safety. If an incident occurs, the focus is not on blame, but on the worker’s full recovery and a cooperative effort to improve processes to prevent future occurrences.

With a strong safety culture, employers have a credible way to demonstrate they value, trust, and care about their employees. Here’s how to use it to give yourself an edge:

For recruitment:

  • Communicate that safety is a core value by personalizing the message. Don’t just talk about metrics, but how employees are valued, respected, and engaged
  • Explain the role employees have in safety and how employees are trusted to do the right thing
  • Describe how orientation training truly reflects what happens in the field/plant, occurs before they even set foot on the job, and how training continues throughout the year
  • Share how employees are rewarded or recognized for making safe behaviors and reporting incidents or near misses
  • Tell how your recovery at work program reflects the company’s values with real stories

For retention:

  • Focus on successes and recognize and reward safe behavior
  • Continually encourage reporting incidents and near misses
  • Use safety to build teamwork and strive for excellence
  • Take an active role in an injured worker’s treatment and recovery. Let them know their recovery is a priority by your actions
  • Reinforce there are no acceptable trade-offs between safety and productivity and that both are everyone’s responsibility
  • Encourage workers to speak freely about hazards and make suggestions for controlling risk

It’s important to recognize that employer complacency will filter down to employees. This can lead not only to a lax attitude about safety and an increase in injuries, but also fewer referrals. Word-of-mouth, as well as social media, can make or break recruitment efforts.

Hiring and retaining the right workers for the right positions

It takes work to maintain a strong safety culture and it begins with the hiring process. While making safety part of the recruiting process enhances the possibility of safety-conscious applicants, employers must be sure that they hire employees who are physically and mentally able to perform the job they are being hired to do.

A compliant way for employers to find out whether an applicant can do the job safely is to implement the Conditional Offer of Employment and Post-Offer/Pre-Placement Medical Questionnaire. When you hire someone who is not capable of doing the job, it’s not a question of if, but rather a question of when they are going to suffer an injury. Employers are less able to bear the burden of employees losing time today than at any time in the recent past.

With Workers’ Comp on the priority backburner, it’s easy to forget about including it in onboarding new employees or training current employees. Yet, the vast majority of employees who suffer an injury at work will find themselves inside the workers’ comp system for the first time. Even a minor injury may seem like a major occurrence because it is unfamiliar and frightening. “What am I going to have to pay?”, “How am I going to feed my family?”, “What do my co-workers think?”, and more fill their mind. When you communicate to workers how the workers’ comp process works, you can alleviate doubts and build confidence.

Getting injured employees back to work is always near the top of the list for best claims practices. While it’s been proven that Recovery at Work programs have an economic benefit, the human element is equally important. By providing support, encouragement, and opportunity, the employer makes the employee feel valued, protected, and confident appropriate work will be available.

Culture has been at the top of safety and health issues for more than a decade. Rethinking recruitment and retention strategies around safety may be the solution to one of the most pressing business matters today.

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

OSHA watch

New video explains inspection process

new video explains the OSHA inspection process.

New fact sheet on taxi driver safety

A new fact sheet focuses on keeping taxi drivers safe.

Input sought on safety training

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

Recent fines and awards

Florida

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

Georgia

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

Illinois

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

Massachusetts

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

Missouri

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

Nebraska

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

New York

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

For additional information.

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

Early workplace injuries predictor of frequent filers

Workers injured in the first six months of their employment are more than twice as likely to have three or more lost-time injuries during their duration of employment than other workers, according to a recent study published in the American College of Occupational and Environmental Medicine. For each year employed before the first lost-time injury, the probability of having three or more lost-time injuries decreased by 13%, according to the study.

The study included 7,609 lost-time claims at Johns Hopkins Health System and University from 1994 through 2017. The injuries occurred among 5,906 workers; 84% were health care workers, and the remainder were academic employees. Although only 49 workers (0.83%) had five or more claims, they accounted for 3.5% of claim costs, or $4.8 million. The workers in the study had an average length of employment of 15.7 years.

Other studies have shown that new employee risk of injury is higher than other workers. Earlier research from the Toronto-based Institute for Work & Health (IWH) found that employees in their first month on the job have more than three times the risk for a lost-time injury than workers who have been at their job for more than a year.

Neither study delved into the issue of “why.” Common speculation is that training and mentorship were inadequate or that hiring practices are the root of the problem. It makes sense because newness is the common thread. Workers performing unfamiliar tasks in a new work environment with less knowledge and awareness are at a more significant risk regardless of their age, according to the IWH.

Yet, assumptions should not be made and each company must analyze their own data. Begin by looking at the data on the injuries incurred in the first six months of employment. Was the hiring process rushed or inadequate in anyway? Was there a post-offer physical exam?

Assess the effectiveness of training and acclimation to the job. Were new workers given real-life practice, a clear message about safety, site-specific information, allowed to start in low-risk situations and advance to higher-risk work? While people learn differently, the more they can perform the work, the better they become.

Review the incident investigations to look for commonalities – location, department, job function/procedure, equipment and so on. How effective was the return-to-work experience?

How you intervene depends on what you learn. It may be that you need to shore up your training program, implement a mentorship approach, or alert the supervisor to provide additional oversight so the employee works more safely. If there are “red flags” such as the injured worker immediately hiring a lawyer, conflict with supervisor or other workers, insufficient detail about injury/accident, no witnesses, failure to keep medical appointments, and so on, you should consult your attorney. In most cases, the injuries of new employees are legitimate, but new employees with fraud “red flags” require special attention.

The message to employers is that there is an association between early employment injuries and risks for multiple injuries. Repeat claims are costly. A thorough analysis is an opportunity to develop preventive measures or cut loose a potential serial offender.

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

OSHA watch

Proposed revisions to Beryllium Standards for Construction and Shipyards finalized

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

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

Final rule issued for new respirator fit testing protocols

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

The additions are:

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

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

New secretary of labor

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

New weighting system for inspections

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

For more information.

Tribal business not subject to OSH Act

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

New alert: working safely near overhead powerlines

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

Oil and gas training tool

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

Joint guidance on GHS pictogram requirements

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

Cal OSHA overhauls reporting requirements for serious injuries

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

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

Recent fines and awards

Florida

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

Georgia

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

Illinois

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

Michigan

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

New York

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

North Carolina

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

Wisconsin

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

For additional information.

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

Legal Corner

ADA

Employer can require reassessment of restrictions

In Booth v. Nissan North America Inc., the 6th US Circuit Court of Appeals found that Nissan did not violate the ADA when it required an employee on its assembly line to have a doctor review his restrictions to determine if they could be adjusted to allow him to perform more tasks. The company had accommodated the job restrictions for some time and then restructured the assembly line to include more tasks. When the employee claimed this would violate his job restrictions, the company asked him to get a new assessment and the doctor cleared him to perform the tasks. An employee under a work restriction does not have an automatic right to a preferred position or to prevent having the restriction re-evaluated from time to time, based on the legitimate business needs of the employer.

FMLA

Employer can ask employee to explain misconduct while on FMLA leave

While employers can’t make an employee on FMLA leave do work or participate in on-call activities, the 3rd Circuit Court held that they can insist upon a prompt response to allegations of misconduct, including serious breaches of policy as in Reagan v. Centre LifeLink Emergency Medical Services Inc. Prior to her leave, the employee had started her own business that competed with LifeLink. When the company found out, they required her to sign a non-compete agreement to continue employment. While the employee was on FMLA leave for a non-work-related injury, her supervisor discovered several breaches of the non-compete agreement.

The general counsel sent a letter to the employee requesting explanations within 10 days for the apparent violations. The employee responded by email one day after the due date and did not address the concerns, but said she was seeking legal counsel. The company immediately fired her and she sued in federal court, claiming that LifeLink interfered with her rights under the FMLA. LifeLink filed a motion for summary judgment seeking dismissal of the claim, which the district court granted.

Workers’ Compensation

Injured worker receives $630,000 in damages on disability and retaliation claim – California

In an unpublished decision, Abarca v. Citizens of Humanity LLC, the 2nd DCA upheld an award of $630,000 in damages to an injured worker on his disability discrimination and retaliation claim. When he experienced pain, he was referred to HR, but was not advised to fill out a claim form. When a doctor imposed restrictions, he was fired. He sued asserting retaliation, disability discrimination, wrongful termination, and other violations of the Fair Employment and Housing Act. A second doctor diagnosed him with degenerative disk disease, insomnia, anxiety, and depression and opined he was temporarily totally disabled.

Question of Social Security eligibility nixes PTD for injured worker – Florida

In SBCR Inc. v. Dos, an appellate court overturned an award of PTD for an injured worker when he turned 62. A JCC had awarded the benefits believing the employee did not meet the requirements for Social Security disability to have at least 40 quarters of coverage by age 62. The worker stated his injury prevented him from working enough, but provided no documentation of his denial. Therefore, the court found there was not enough evidence to support the JCC’s award.

Widow denied death benefits for husband’s auto accident – Massachusetts

In Yang’s Case, an appellate court upheld earlier rulings that a business owner’s death in an auto accident was not work related. The case demonstrates the complexity of intertwined businesses as the deceased owned a business in Massachusetts, which had comp coverage and one in New Hampshire that did not. Despite being a separate company in a separate state with no connection other than ownership, the company’s finances were entwined.

When the NH company failed, he closed it. He was traveling to NH to meet with a prospective buyer of the property when the accident occurred. The court agreed with earlier rulings that he was traveling to serve his personal interests.

State supreme court overturns benefits for Ex-NFL player with head trauma – Minnesota

In Noga v. Minnesota Vikings Football Club, a former defensive linesman for the Minnesota Vikings, was denied compensation for dementia arising from head trauma because the statute of limitations had passed. The ruling reversed an award of total permanent disability benefits. He stopped playing football in 1994 and was awarded comp for orthopedic injuries in 2004. At the time, the doctor identified neurological issues, including blackouts and headaches, which could be attributed to injuries incurred while playing for the Vikings.

He became legally blind and was diagnosed with dementia in 2011 and filed a comp claim for the head injuries in 2015. The six-year statute of limitations had passed since both Noga and the Vikings knew of the issue in 2004, but Noga argued the team waived the statute of limitations because they acknowledged he had a neurological health issue when they treated him while playing. The supreme court disagreed.

Court of appeals revives teacher’s case for benefits for fall injuries – Missouri

In Maral Annayeva v SAB of the TSD of the City of St. Louis, an ALJ and the Labor and Industrial Relations Commission denied benefits for a teacher who fell after entering the building. The denial was based on the employee’s credibility and medical opinions based on subjective descriptions, as well as the questioning of her attorney. Although she initially described the floor as “normal,” upon questioning by her attorney she mentioned dirt, ice, dust and moisture.

The court of appeals reversed and remanded the commission’s decision, finding there was no conflicting evidence or testimony to dispute the employee’s statements about the condition of the floor. The court ruled the employee’s injury did arise out of her employment because she was required to walk the hall each day to clock in, thus, she was exposed to the inherent condition of the employer’s workplace.

Lack of English skills not sufficient reason to excuse compliance with the notice statute – New York

In Matter of Nukicic v. McLane Northeast, an appellate court found that the Workers’ Compensation Board (WCB) acted within its statutory powers when it found that a worker failed to provide the employer with the required notice of injury. The truck driver, who was not proficient in English, told two supervisors that he had pain in his knee and that a physician placed him “off work” for a short period. However, he never connected the pain to his work.

Heart attack after dealing with difficult customers did not arise out of an in course of employment – New York

In Issayou v Issayuou Inc, the owner of a hair salon sustained a heart attack minutes after dealing with difficult customers. The WCB found the employer’s medical expert, who concluded the condition was advanced, triple vessel, obstructive coronary artery disease, most credible. The appellate court agreed and also noted that the level of stress faced by the salon owner was no greater than that experienced by other similar workers.

Paralysis from car accident not compensable – North Carolina

In Bache v. Tic-Gulf Coast, the Court of Appeals affirmed an Industrial Commission’s finding that a traveling worker was not in the course and scope of his employment when he was in a car accident that took place after he had dinner and a beer. The employee, who lived in Florida, worked for a company that had been contracted to perform construction at a power plant in Wayne County. He received an hourly rate and a per diem rate to cover duplicate living expenses.

While driving home from a restaurant after work, he was in a single car accident that left him paralyzed from the waist down. He had a blood alcohol level of 0.10. He filed for comp benefits, arguing he was a traveling employee and that state law provides that “employees whose work requires travel away from the employer’s premises are within the course of their employment continuously during such travel.”

However, an appellate court upheld earlier rulings denying benefits. He was living locally and his job was conditional on his moving to North Carolina for the two-year project. It was unlike a business trip and the travel was entirely personal.

Rare comp and tort claim net settlement of over $9 million – North Carolina

A temp employee who was assigned to work for a manufacturer as a janitor suffered severe burns over most of his body in an explosion. Initially, the temp agency was identified as the employer, but when an issue of negligence was raised, the plant argued that the worker was a joint employee of the factory and of the temp agency and it was protected by the exclusive remedy of workers’ comp.

However, the contract between the plant and the temp agency clearly stated that the temp agency was to be considered the employer. Therefore, the tort claim against the plant could proceed. Mediation and reports from expert witnesses showed the factory had violated its own safety policies and was vulnerable to a negligence claim and heavy damages. The tort claim was settled for $8 million and the workers’ comp carrier agreed to waive the subrogation lien and pay a settlement of $1.25 million.

The terms of the settlement require that the names of the factory, its insurer and the worker be kept confidential.

Bank teller’s carpal tunnel not compensable – Pennsylvania

In Elsa Olivo v. Workers’ Compensation Appeal Board et. al., the Commonwealth Court affirmed the ruling of an WCJ and the WCAB that a bank teller failed to prove that her work caused her carpal tunnel. She had worked as a teller for eight years and spent about 25% of the time counting money and sought total disability after being diagnosed with carpal tunnel syndrome in both wrists.

Two examining doctors opined that she was able to return to work with no restrictions and an IME found that she exaggerated her symptoms. One of the doctors noted “for something to be deemed work-related carpal tunnel it would have to be something that involves a high force, (high) torque vibration situation…bank teller not being one of them.”

Violation of restraint policy does not nix benefits – Tennessee

While a residential treatment facility argued an employee violated its policies, the Supreme Court’s Special Workers’ Compensation Appeals Board ruled he was entitled to benefits for an injury he sustained while trying to restrain a patient because he did not willfully violate the policy. Further, it was noted the facility failed to show they engaged in a serious enforcement of the policy.

In Tennessee Clinical School v. Johns, a relatively new employee was asked to stay beyond his shift and get a group of teenage boys up for breakfast. One boy resisted, and when a scuffle occurred, the employee attempted to restrain the boy and seriously injured his shoulder. The court found the restraint policy was not a “hard and fast rule” and permitted restraining actions if a resident posed a threat.

Psychological injuries from assault compensable – Tennessee

In Natchez Trace Youth Academy v. Tidwell, the Supreme Court affirmed a trial court’s disability finding and monetary award to an employee, who was injured by a youth living at the residential treatment facility where he worked. His facial injuries required plastic surgery. Following a week’s time off, he returned to light duty with the stipulation he would not have to interact with the residents.

However, when staff did not arrive to replace him he was required to wake up the children. He began to experience anxiety and depression. Although he was released for full duty work without restrictions, it was unclear if this was just for his physical injuries. He did not contact the Academy and they considered him to have abandoned his position.

A trial court ruled he suffered an injury and developed depression and PTSD as a result of the incident and required a psychiatric evaluation before returning to work. The court awarded him nearly $100,000 in disability as well as additional unpaid temporary total disability benefits.

Two-cause rule does not apply to cases involving dissimilar disabilities – Virginia

In Virginia,when a work-related disability combines with a nonwork-related disability to prevent the employee from working, the entire total disability is the responsibility of the employer under the “two-cause” rule. In Carrington v. Aquatic Co., a long-term employee suffered from preexisting kidney disease that did not affect his ability to work. In a work-related accident, he injured his arm and received comp benefits. He was cleared to return to light duty, which he did.

Shortly thereafter, his kidney condition deteriorated such that he was unable to work and filed for TD benefits, arguing the two-cause rule should apply. He died during the appeals process which led to the state Supreme Court. It upheld lower rulings that the sole cause of his total disability, was his kidney failure that was unrelated to his employment. The key question was which injury kept him from working at all – thus rendering him totally disabled. Further, the compensable arm injury did not contribute to his kidney deterioration.

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

OSHA watch

Comments sought on possible revision to silica standard

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

New webpage on leading indicators

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

Employers reminded to submit Form 300A data

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

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

New way to track OIG recommendations

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

Recent fines and awards

California

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

Florida

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

Georgia

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

New York

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

Indiana

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

Missouri

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

Pennsylvania

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

Tennessee

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

Wisconsin

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

For additional information.

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

OSHA watch

FY 2018 Enforcement summary released

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

Comments on updating Lockout/Tagout standard due August 18

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

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

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

Whistleblower website updated

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

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

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

Reminder: Hurricane preparedness and response

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

Cal/OSHA emergency wildfire smoke regulation takes effect

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

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

Recent fines and awards

California

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

Florida

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

Georgia

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

Illinois

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

Missouri

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

New York

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

North Carolina

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

Pennsylvania

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

Wisconsin

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

For additional information.

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

12 mistakes employers make when an OSHA inspector knocks unexpectedly

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

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

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

Here are 12 mistakes commonly made by employers:

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

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

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

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

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

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

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