OSHA watch

Interim enforcement guidance on silica standard for construction

The interim enforcement guidance for the Respirable Crystalline Silica in Construction Standard (1926.1153), which is now enforced in full, was issued Oct. 19 in a memorandum to regional administrators. The guidance is intended to help gauge whether employers meet various requirements, including those for inspections and avoiding citations, but does not provide guidance on all of the standard’s provisions. A final compliance directive is in the review process.

Information on silica hazards and related standards are now in one location on the website.


New fact sheets: Zika virus and evaluation of Shipyard Competent Person programs

The fact sheet on the Zika virus details how laboratory exposures occur, often through bodily fluids, and how to prevent exposures.

The Shipyard Competent Person programs fact sheet offers guidance on determining the necessary qualifications of experts who must be employed to determine whether a confined space is safe for workers and prescribe protective measures.


Pennsylvania construction firms join Strategic Partnership program

Shoemaker-Skanska Construction and the Philadelphia Regional Building Trades Council entered into a strategic partnership to protect approximately 300 workers during renovation and construction of a shopping mall complex in Philadelphia. P.J. Dick Incorporated entered into a strategic partnership to protect approximately 200 workers during the construction of an insurance office building in Erie.


Enforcement notes

California

  • HBuilt Inc. in Oakland received two serious citations and $80,000 in penalties for failing to train workers on potential hazards and safe operation of machines, ensure proper machine guarding, and provide workers with gloves designed to prevent cuts.

Georgia

  • Structural Subcontractors Service LLC, a Birmingham-based structural framing company working on a job site in Georgia, faces penalties of $102,669 for exposing workers to fall hazards. Inspectors found workers wearing fall protection harnesses, but were not tied off to prevent a fall. The inspection was initiated as part of a regional emphasis program.

Massachusetts

  • Citations and proposed penalties against Dudley-based Shield Packaging Co. Inc. and two staffing agencies following a May 2016 incident in which an employee was injected with a flammable propellant gas have been settled. The packaging company will pay $150,000, about 50% of the original levy, and the two staffing agencies, Leominster-based ASI Staffing Group Corp. and Worcester-based Southern Mass Staffing, will pay $12,471 and $12,222 respectively. The company also agreed to document that all hazards are corrected, retain a professional engineer to approve the design and installation of a safety interlock on the machine that injured the worker, retain a qualified safety consultant to perform a comprehensive inspection of the plant, and develop a workplace safety and health program, while the staffing agencies also agreed to implement specific comprehensive safety and health measures.

Michigan

  • Ten citations and $102,600 in penalties were issued to SET Enterprises Inc. in New Boston for exposing workers to amputation hazards. Inspectors determined that the company failed to train workers on potential hazards and safe operation of machines, ensure proper machine guarding, and provide workers with gloves designed to prevent cuts.

New York

  • Acme Parts Inc. has agreed to pay $40,000 in penalties after high lead levels were found in the manufacturing facility as well as hire a qualified lead hazards and abatement consultant to evaluate the facility and to recommend improved practices.
  • An administrative law judge affirmed citations issued against Webster-based LM Sanderson Construction Inc. whose employees were photographed working on a site without fall protection and assessed total penalties of $5,600. The employer failed to meet its burden in contending the violation was the result of unpreventable employee misconduct or that literal compliance with the standard’s requirement was infeasible under the circumstances.

Pennsylvania

  • Pittsburgh contractor, Ski Masonry LLC, is facing $201,354 in proposed penalties for exposing workers to fall and electrical hazards after an employee was fatally electrocuted.
  • In response to a complaint, the owner of a New Jersey construction company has been cited for exposing workers to alleged hazards at a Philadelphia job site, including allowing employees to work on a scaffold that was too close to power lines, failure to train on scaffold hazards, not providing hard hats and failing to develop and implement an accident-prevention program. The owner, Vyacheslav Leshko, faces $191,215 in proposed penalties.

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

Important takeaways from recent studies and reports

Strategies to reduce costs and risks of musculoskeletal disorders

A report by the Northeast Business Group on Health (NEBGH) urges employers to look at their own experiences with claims, disability, workers’ compensation and health risk assessment data to best prioritize program selection and implementation to better manage MSDs. It addresses several strategies to mitigate cost and health issues and suggests using onsite ergonomics training, online courses on the subject and workplace redesigns. It also suggests new approaches to treatment, such as online pain education, direct access to physical therapy by bypassing physician referrals, and directing employees away from “unnecessary diagnostic imaging and expensive visits to specialists.” Finally, the report examined ways to ensure that if surgery is needed, that the care is performed in an efficient and cost-effective way.

Obesity and worker productivity by occupational class

The Journal of Occupational and Environmental Medicine has published a new study, “Impact of Obesity on Work Productivity in Different US Occupations: Analysis of the National Health and Wellness Survey 2014-2015”, which examines the impacts of obesity by different occupational classes on work productivity and indirect costs of missed work time.

BMI results were as follows:

  • Protective Services: 38% overweight, 39% obese
  • Transportation: 38% overweight, 36% obese
  • Manufacturing: 35% overweight, 30% obese
  • Education: 31% overweight, 30% obese
  • Healthcare: 31% overweight, 30% obese
  • Construction: 38% overweight, 29% obese
  • Hospitality: 32% overweight, 27% obese
  • Arts: 34% overweight, 26% obese
  • Finance: 36% overweight, 25% obese
  • Computer: 36% overweight, 25% obese
  • Legal: 38% overweight, 24% obese
  • Science: 37% overweight, 21% obese

The researchers concluded that there was a positive association between work productivity impairment and increases in BMI class that varied across occupations. Obesity had the greatest impact on work productivity in construction, followed by arts and hospitality, and health care occupations. Work impairment was least impacted by increases in BMI in Finance, Protective Services, Computers, Science, and Legal. It was estimated that the indirect costs associated with the highest BMI group in construction was $12,000 compared to $7,000 for those with normal BMI.

Would your floors pass the slip and fall test? 50% fail

Half of the floors tested for a slip-and-fall study failed to meet safety criteria, suggesting that many fall-prevention programs may overlook the effects of flooring selection and ongoing maintenance on slip resistance, according to a study by CNA Financial Corp.

Given the high frequency of slips and falls, these findings underscore the need for attention to floor safety and regular surface resistance testing to avoid fall accidents and related injuries.

Fatigue costs employers big bucks

Key findings from a recent study on fatigue by the National Safety Council (NSC) include:

  • More than 43 percent of all workers are sleep-deprived, and those most at risk work the night shift, long shifts or irregular shifts. As employees become tired, their safety performance decreases and their risk of accidental injury increases.
  • Missing out on sleep makes it three times as likely to be involved in an accident while driving. Also, missing as little as two hours of sleep is the equivalent of having three beers.
  • Employers can see lost productivity costs of between $1,200 to $3,100 per employee per year.
  • The construction industry has the highest number of on-the-job deaths annually. In a 1,000-employee national construction company, more than 250 are likely to have a sleep disorder, which increases the risk of being killed or hurt on the job.
  • A single employee with obstructive sleep apnea can cost an employer more than $3,000 in excess healthcare costs each year.
  • An employee with untreated insomnia is present but not productive for more than 10 full days of work annually, and accounts for at least $2,000 in excess healthcare costs each year.

Experts say employers can help combat fatigue by offering breaks, scheduling work when employees are most alert, and promoting the importance of sleep.

Workers welcome employers’ help in dealing with stress

Workers want their employers to offer assistance in coping with work-related stress, according to a new report from the American Heart Association’s CEO Roundtable.

The report also concludes that employees think more highly of employers offering resiliency programs. Valued programs include methods for dealing with difficult people, improving physical health, remaining calm under pressure, coping with work-related stress and accurately identifying the causes of work-related problems. It also includes actionable strategies for effective workplace resilience programs.

Supportive communication and work accommodation help older workers return to work

While early supportive contact with injured workers and offers of work accommodation are important to all injured workers, a recent webinar hosted by the Disability Management Employer Coalition (DMEC) and presented by Dr. Glenn Pransky, founder of the highly acclaimed, but now-defunct Center for Disability Research within the Liberty Mutual Research Institute for Safety, noted that these two strategies are particularly effective with older workers.

His research involved workers’ comp cases in New Hampshire related to low back and upper extremity problems. Negative responses, including lack of support, anger, disbelief, blaming the worker, or discouraging the worker from filing a claim resulted in significantly longer disability, and the effect was especially strong among older workers.

Click to hear the DMEC webinar

Loss control rep visits cut lost-time injuries in construction

Visits by insurance loss prevention representatives to construction job sites can lead to fewer workplace injuries, according to a study by a Center for Construction Research and Training supported research team at the University of Minnesota. One contact was associated with a 27% reduction of risk of lost-time injury, two contacts with a 41% reduction of risk, and three or more contacts with a 28% reduction of risk, according to the study. The study also found that these visits are often low cost and that the reduction in lost-time injuries reduced workers’ comp costs.

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

Don’t let your holiday party become a legal liability

No one wants to be a spoil sport. Holiday parties are supposed to be festive and fun, but they can also be a breeding ground for liability under tort, workers’ compensation, sexual harassment, discrimination, and other laws. Planning ahead to minimize exposure can help ensure a lawsuit-free event.

Workers’ Compensation

A North Carolina case last year, Lennon v. N.C. Judicial Dept., illustrates the issues that are common when an employee is injured at an office event. Whether such injuries are covered under workers’ compensation laws will depend on many factors (which can vary by state), but the overriding question is whether the employee was acting in the course and scope of employment at the time of the incident.

In this case, the injured employee worked for the division of the county clerk’s office that was in charge of planning the annual office holiday party. During regular working hours, she designed invitations, arranged for catering, and helped plan the party. She also volunteered to serve as the “emcee” for the event. All employees were invited, but not required to attend, and the cost of the food and venue was paid for by a group of private attorneys who sponsored the party. Even if they did not attend, all employees were expected to contribute $13 to pay for a gift to the clerk of court and for cleaning up after the party.

On the evening of the party, she fell and suffered a fracture of the wrist and coccyx and a tear of her shoulder. She received short-term disability benefits and filed a workers’ comp claim for days missed from work, permanent partial disability, and medical expenses. When the insurance company denied the claim, it went through a series of appeals, which upheld the denial.

The appellate court used a six-question analysis to help determine if the injury arose out of the scope of employment:

  1. Did the employer in fact sponsor the event?
  2. To what extent was attendance really voluntary?
  3. Was there some degree of encouragement to attend, evidenced by such factors as:
    1. taking a record of attendance
    2. paying for the time spent
    3. requiring the employee to work if he did not attend or
    4. maintaining a known custom of attending?
  4. Did the employer finance the occasion to a substantial extent?
  5. Did the employees regard it as an employment benefit to which they were entitled?
  6. Did the employer benefit from the event, not merely in a vague way through better morale or good will, but through such tangible advantages as having an opportunity to make speeches and present awards?

While laws will vary by state, employers who take careful steps to disassociate the event from work and confirm that the venue and service providers are properly licensed will minimize their risk.
Tort

While drinking too much at a holiday party may derail a career, alcohol is at the root of many lawsuits and employers need to take steps to ensure that the revelry does not get out of hand. When excessive drinking occurs, employers can face claims of social host liability, negligence, and respondeat superior, which holds employers responsible for the acts of employees such as DUI cases.

A recent New York case, Gillern v. Mahoney, illustrates the exposure that excessive drinking can cause, even when the employer had no role in the celebration. A number of employees organized a holiday party and when a co-worker became intoxicated, they contacted his wife (also an employee and a nurse) to take him home. When she arrived, they assisted her in getting her inebriated husband into the car. When at home, she let him sleep it off in the car, but later, she found him dead on the car floorboard.

Even though the party was not sanctioned or paid for by the employer, was not held on its property, and all participating employees were off duty, the employer was sued for the worker’s death. Upon appeal, the appellate court found that the action of the co-employees was not the proximate cause of the decedent’s death and the employer and various co-employees could not be held responsible in tort.

It would be an easy solution not to serve alcohol, but that is not always realistic. Employers need to establish limits on the amount and type of alcohol that will be served. Definite “no’s” are an open bar and allowing employees to serve drinks. Limit the number of drinks with a drink ticket system or don’t provide free drinks at all, close the bar early, hold the event off site at establishments with a liquor license and properly trained bartenders, provide plenty of food, and arrange alternative transportation. Be sure management leads by example. Advise employees to be responsible with a statement on the party invitation and/or a written reminder on the responsibilities to drink only in moderation and to avoid driving after drinking.
Harassment

This year, where we seem more divided than ever and some are emboldened to mock or denigrate others, if it can go wrong, it will. In a social situation with alcohol, employees can lose their inhibitions and do offensive things that they wouldn’t normally do in a work environment. Yet, an employee’s diminished capacity is not a defense to claims of harassment or assault and employers could be held responsible because they created the environment for that conduct to take place. Other issues that can lead to lawsuits are a religiously themed party and religious symbolism, hanging mistletoe, inappropriate postings on social media that could lead to claims of a hostile work environment, harassment or discrimination.

While hosting a party off-site can better protect your company, employees can also assume office standards of conduct do not apply. Employers should remind workers that behavior at the party should comport with the same behavior that is acceptable in the workplace and that the same reporting procedures apply should any incidents occur. Make the dress code known and avoid holiday attire or costumes. Remind supervisors and managers to set a professional example, by staying clear of talking about promotions, performance, and other business matters related to individual employees, and not selectively offering personal compliments.
Gift exchanges

Similar to office parties, Secret Santa and Yankee Swaps, and other forms of gift exchange are popular during the holiday season. It’s important to make this voluntary and set parameters for appropriateness, inclusivity, and price.
Nine actions to minimize risk

While each state has its own nuances in the law, employers can best protect themselves with these actions:

  • Hold the party off-site and not during office hours
  • Ensure that attendance is truly voluntary; there is no coercion to attend and no high expectation of attendance
  • Be cautious about inviting vendors, clients or others with whom you have a business relationship
  • Refrain from engaging in business activities, such as speeches and distribution of awards
  • Avoid asking employees to perform specific functions at the party or recognize that in so doing, they could be considered in the scope of employment
  • Limit or do not serve alcohol
  • Remind employees that normal workplace standards of conduct are to be respected, including the use of social media, and immediately stop inappropriate conduct
  • Confirm that the venue is properly licensed
  • Understand your exposure and corresponding insurance coverage

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