Category: Laws and Legislation

OSHA Increases Penalties, First Since 1990

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The Occupational Safety and Health Administration (OSHA) is raising its penalties to match the rate of inflation marking the first increase in penalties since 1990.

The interim final rule was published July 1, 2016, and is based on the Federal Civil Penalties Inflation Adjustment Act Improvements Act which became law in November 2015.

OSHA invites public comment for a 45-day period after which clarifying statements will be followed by a final rule. The rule will be in effect during the comment period. Civil penalties have remained unchanged since 1990, which means a 78% increase in maximum and minimum violations for penalties assessed after August 1, 2016 for associated violations assess after November 2, 2015.

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This results in serious violations that maxed out at $7,000 per violation can now cost up to $12,471 per violation. Willful or Repeated violation penalties have gone up from $70,000 to $124,709.

The Department of Labor (DOL) has released a fact sheet  with more information

This increase isn’t a one-time catch up, agencies are also directed to adjust their penalties for inflation each year. The stated purpose of this adjustment is to maintain the deterrent effect of civil monetary penalties.

This act also affects penalties administered by the Mining Safety and Health Administration (MSHA), Employee Benefits Security Administration (EBSA), Office of Workers’ Compensation Programs (OWCP), Wage and Hour Division (WHD), and the Department of Homeland Security (DHS). A chart of each agency’s adjustments can be downloaded.

Marijuana Use vs. Fit for Duty

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Workplaces are feeling the effects of both medical and recreational marijuana legalization. These new laws are making it more difficult to discipline someone who tests positive for marijuana. Ambiguous language protects impaired drivers from prosecution and makes it hard for employers to prove impairment at work.

Unlike alcohol, a test that shows level of marijuana impairment is not available. Instead a person can test positive weeks after using marijuana. One alternative approach to simply banning marijuana use as a component of the company drug and alcohol policy is to cover impairment in the safety policy under fitness for duty.

Start off by requiring employees disclose when they start taking any drug that causes impairment when working a safety sensitive job. This can be marijuana or a cold medicine, and the employee doesn’t have to disclose the drug or medical condition.

Be sure to update all job descriptions to define all safety sensitive jobs in compliance, by just listing essential job functions. Have a policy that states when an employee works in a safety sensitive job they should be able to work in a constant state of alertness and in a safe manner, and disclose when they have taken an impairing effect prescription or other substance.

Then the employer has the right to make a fitness for duty determination or send the employee to an occupational doctor for a fitness for duty evaluation with a copy of the job description. If it comes back that they are impaired and didn’t tell you, then you can manage that under your safety policy, and not your drug policy.

Make sure that all employees have a copy of the written company policy and education on drug and alcohol abuse that includes where to get more information. Supervisors need recurrent training on the effects of drugs and alcohol and how to determine reasonable suspicion.

Everybody needs to know the company position on medical and recreational marijuana and other prescription drug use through a consistent and proactive policy that includes appropriate testing.

Safety Fail; Go to Jail?

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To prevent and deter crimes that put the lives and the health of workers at risk, the Departments of Justice and Labor announced a plan on December 17, 2015 to more effectively prosecute such crimes.  Under the new plan, the Justice Department’s Environment and Natural Resources Division and the U.S. Attorneys’ Offices will work with the Department of Labor’s Occupational Safety and Health Administration (OSHA), Mine Safety and Health Administration (MSHA) and Wage and Hour Division (WHD) to investigate and prosecute worker endangerment violations.

“On an average day in America, 13 workers die on the job, thousands are injured and 150 succumb to diseases they obtained from exposure to carcinogens and other toxic and hazardous substances while they worked,” said Deputy Attorney General Sally Quillian Yates.  “Given the troubling statistics on workplace deaths and injuries, the Department of Justice is redoubling its efforts to hold accountable those who unlawfully jeopardize workers’ health and safety.”

Starting last year, the Departments of Justice and Labor began meetings to explore a joint effort to increase the frequency and effectiveness of criminal prosecutions of worker endangerment violations.  This culminated in a decision to consolidate the authorities to pursue worker safety statutes within the Department of Justice’s Environment and Natural Resource Division’s Environmental Crimes Section.  In a memo sent to all 93 U.S. Attorneys across the country, Deputy Attorney General Yates urged federal prosecutors to work with the Environmental Crimes Section in pursuing worker endangerment violations.  The worker safety statutes generally provide for only misdemeanor penalties.  However, prosecutors have now been encouraged to consider utilizing Title 18 and environmental offenses, which often occur in conjunction with worker safety crimes, to enhance penalties and increase deterrence.  Statutes included in this plan are the Occupational Safety and Health Act (OSH Act), the Migrant and Seasonal Agricultural Worker Protection Act (MSPA) and the Mine Safety and Health Act (MINE Act).

In the most recent example of the heightened effort to prosecute safety violators, former Massey Energy CEO Don Blankenship will be sentenced on April 6th on a conviction of conspiring to violate safety rules at a mine where a deadly explosion occurred.

Blankenship was found guilty in December of conspiring to willfully violate mine safety rules at West Virginia’s Upper Big Branch Mine, which exploded in 2010 and killed 29 men. He faces up to one year in prison for the misdemeanor. He was acquitted on felonies that could have netted him 30 years.

 

U.S. DEPT. OF LABOR HELPS NON-PROFITS

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On September 2, the United States Department of Labor’s Occupational Safety and Health Administration (OSHA) made a move to help high-risk workers and employers by awarding $10.5 million to 80 nonprofit organizations across the country.

This money will fund training, safety and health education to help workers and their employers recognize workplace hazards, enact injury prevention, and understand their rights.

“Susan Harwood training grants save lives,” said U.S. Secretary of Labor Thomas E. Perez. “The hands-on training supported by these grants help assure that workers and employers have the tools and skills they need to identify hazards and prevent injuries.”

For this year’s funding, small-business employers and vulnerable workers in high-hazard industries comprise the majority of the recipients.

“This program provides thousands of workers and small employers with hands-on training and education in some of the most dangerous industries,” said Assistant Secretary of Labor for Occupational Safety and Health Dr. David Michaels. Funding from this grant program has trained nearly 2.1 million workers since it began in 1978.

Q&A: Emergency Shower Installation Requirements

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Question:

I currently have an indoor safety shower, and want an outdoor safety shower just outside the building, does the supply need to be sized in case both showers are used at once?

Answer:

OSHA’s applicable regulation is 1910.151(c): “Where the eyes or body of any person may be exposed to injurious corrosive materials, suitable facilities for quick drenching or flushing of the eyes and body shall be provided within the work area for immediate emergency use.”

This is a performance based regulation because it states what the safety shower must accomplish to meet the regulation. This is different from a prescription based regulation that defines an action or a limit, like the occupational noise exposure limit of an 85 decibel limit over eight hours. A prescriptive regulation is the result of a threshold being tested enough times to ensure safety within the stated limit.

The key word to the regulations is “suitable”, meaning the emergency shower has to work good enough considering the hazards at that particular worksite. OSHA explains its stance in an interpretation of the regulation:

“29 CFR 1910.151(c) does not provide specific instruction regarding the installation and operation of emergency eyewash and shower equipment. Therefore, it is the employer’s responsibility to assess the particular conditions related to the eyewash/shower unit…to ensure that the eyewash/shower unit provides suitable protection against caustic chemicals/materials to which employees may be exposed.”

Over the years OSHA has published several interpretations on this regulation, answering questions submitted to them.

In them OSHA refers employers to ANSI Z358.1. The American National Standards Institute (ANSI) is a private organization that develops voluntary standards. Unlike others, OSHA did not adopt this standard, but refers employers to it as a guide with detailed information for installing and operating emergency eyewash and shower equipment. But that means any citation will be the result of not having a suitable emergency shower for the workplace condition.

Other Question & Answer articles:

  • Emergency Shower Installation Requirements
  • Lockout Procedures At Shift Change
  • OSHA Interpretations of Steel Erection Fall Protection Regulations

Safety School: Emergency Response Plans for Permit Required Confined Spaces

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Here are four basic questions to check that your emergency response plan for permit required confined spaces is complete.

  1. Do you have a rescue team standing by every time someone enters a confined space where the atmosphere either is or could turn into an Immediately Dangerous to Life and Health (IDLH) atmosphere?
  2. Otherwise, does the sum of the time for the emergency response team from notification to rescue equal less than the amount of time the person must be rescued in?
  3. When was the last time the emergency response team practiced a rescue?
  4. If you don’t have a trained response team, have you checked that the one you are going to rely on know how to perform possible rescues?

These four questions are just some of the emergency response variables that employers need to address before sending a worker down into a permit space, and the included documents help you ask them all.

This is all created from the part of Permit-Required Confined Spaces regulation for Rescue and Emergency Services, 1910.146(k), and Appendix F that explains how to fulfill that part. First don’t disregard the appendix because it is too complicated or non-mandatory. An appendix serves as an explanation on how to meet some of the more complicated or technical requirements, so if you aren’t 100% sure what to do, following those procedures correctly is the easiest road to being legal.

In addition to having a plan for the attendant to try to extract the entrant without entering (e.g. harness and winch) there needs to be a plan to call for rescue and emergency help. 1910.146(d)(9) The appendix drives this home with the frank advice: “Merely posting the service’s number or planning to rely on the 911 emergency phone number to obtain these services at the time of a permit space emergency would not comply with paragraph (k)(1) of the standard.”

The appendix breaks this evaluation up into two parts: first an initial evaluation of the plan being considered, then a periodic performance evaluation once a plan has been established. The first PDF “Initial Evaluation of Confined-Space Rescue Plans” covers the first part, and the second PDF “Performance Evaluation of Confined-Space Rescue Plans” covers the first half of the second part. I’ve broken out a separate PDF called “Planning Confined-Space Rescue Drills” for the second half.

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Initial Evaluation of Confined Space Rescue Plans

Why posting a phone number to the local fire department isn’t enough is because OSHA wants an employer to evaluate – 1910.146(k)(1)(i) – the rescuer’s response times and ability to rescue entrants from identified permit spaces. This table provides the framework to do that.

A “no” in response to any of these questions, and you may have to go back to the drawing board to find another approach.

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Performance Evaluation of Confined Space Rescue Plans

The second PDF is a checklist of ongoing confined space rescue plan that involves relying on trained employees. This can be completed immediately after a drill or rescue, and like the first one, a “no” means something needs to be fixed.

Planning Confined Space Rescue Drills

An established team needs to experience a rescue attempt at least

Planning-Confined-Space-Rescue-Drillsonce a year, so if there hasn’t been a rescue in the last 12 months a practice drill needs to be completed. The drill has to cover all possible worksite scenarios in either a “worst-case” environment or a representative space. I’ve separated one of the performance evaluation plan questions into its own table to check off all of the possible worksite scenarios that need to be practiced.

Other Safety School articles that examine the more academic concepts of occupational safety:

  • OSHA Inspections
  • Contact Release Training for NFPA 70E 2015
  • Scaffolding Code of Safe Practices
  • Emergency Response Plans for Permit Required Confined Spaces
  • Spotlighting the Importance of Checklists
  • Details of a Fully Developed Emergency Action Plan
  • The Six Guiding Principles of an Industrial Hygienist
  • Exactly How Does A Safety Manual Protect Your Company in an Inspection?
  • Who Is Covered (Or Not) By OSHA

CRANE OPERATOR CERTIFICATION

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OSHA recently announced that it would extend deadline for implementing its crane operator certification rule requiring  employers to ensure that crane operators are certified until November 10, 2017. OSHA is also extending the employers’ duty to ensure that crane operators are competent to operate a crane safely for the same period.

Currently OSHA requires employers to ensure that their crane operators are certified by one of four means:

  • Option 1. Certification by an independent nationally accredited testing organization
  • Option 2. Qualification by an independently audited employer’s program
  • Option 3. Qualification by the U.S. military
  • Option 4. Compliance with qualifying state or local licensing requirements

OSHA’s extension decision was based on the following factors.

  1. Inputs from concerned parties indicated that the proposed certifications wouldn’t guarantee that crane operators could operate their equipment safely at a construction site. They said that certified operators would need additional training, experience, and evaluation to ensure that they could operate a crane safely.
  2.  OSHA also received information that half of the accredited testing organizations were issuing certifications based only on the type of crane, instead of offering different certifications by type and capacity of crane, as required by the standard.
  3. The majority of participants in review forums said that an operator’s certification by an accredited testing organization didn’t mean that an operator was fully competent to operate a crane safely on a construction work site, and compared it to a new automobile driver’s license, or a beginner’s permit. Stakeholders recognized that an operator certification was beneficial in establishing a minimum threshold of operator knowledge and familiarity with cranes.
  4. Many participants supported OSHAs’ proposed extension saying, “While operator certification offers important safety benefits, most current certifications lack the inclusion of the capacity factor and therefore wouldn’t comply with the final standard”. They also said that the confusion about the acceptability of certifications currently being issued and the difficulty, or even impossibility, of many crane operators getting a valid certification by November 2014, justifies the extension.

During the three-year extension period, OSHA will address operator qualification including the standards for crane operator certification. OSHA has already begun the process of developing a standard to ensure crane operator qualifications.

Where Maryland’s State Plan is Stricter Than OSHA

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Federal OSHA regulations are simply the minimum standard. About half of the U.S. states have taken advantage of their own authority to make stricter, or additional, rules.

Maryland OSHA (MOSH) is one of the “state plan” states that administer their own “mini-OSHA.” MOSH has beefed up their regulations on everything from:

  • Excavation designs
  • Asbestos in protective clothing
  • Smoking at work
  • Entering manholes
  • Powered equipment training
  • Reporting toxic substances
  • Medical surveillance testing for lead poisoning, to
  • Tree care and removal

Excavation Design

The designs for sloping, benching and support, shields, or other protective systems designed from tabulated data or a registered professional engineer need to be at the worksite while they are being constructed, according to the Federal government.

MOSH wants employers to keep those designs at the worksite even longer to include while they are being used in the larger construction project.

Asbestos in Protective Clothing

Asbestos is as useful as it is deadly, and before its carcinogenic hazards were fully known, asbestos was utilized as heat insulating protective clothing. But because asbestos protective clothing that is improperly maintained can expose employees to that hazard, Maryland has banned employers from buying, using, requiring a worker to use or even keeping any asbestos clothing at a place of employment.

Smoking at Work

Every state has its own smoking laws. Some ban smoking within 20 feet of a business’s entrance; some have exceptions for bars and restaurants – but not Maryland.

MOSH makes it clear that smoking is not allowed in any indoor place of employment, and that there must be a “No Smoking” posted at each entrance.

Entering Manholes

OSHA’s 1910.146 regulation defines confined and permit required confined spaces, with employer and employee responsibilities.

Maryland decided to eliminate some guesswork and make a rule that, with limited exceptions, requires there to be at least one other person immediately nearby when someone enters a manhole.

The exception to this rule is if the employee can go into the manhole with cables or equipment to take readings, perform housekeeping or an inspection, or complete some other safe task.

Powered Equipment Training

OSHA has specific training regulations for some heavy equipment such as: forklifts and cranes. However, for earthmoving equipment such as scrapers, loaders, tractors, bulldozers, off-highway trucks, graders and similar equipment, the training requirements are vague, and you have to refer to General Safety and Health Provisions training element, 1926.21, which requires employees are able to recognize and avoid unsafe conditions in their work environment.

For its part, Maryland, has established some training elements for what it defines as power equipment: backhoes, bulldozer, front-end loader, skid steers, gradalls, scraper pans, cranes, and hoists.

The employer must develop and carry out a program of the standards needed to safely operate power equipment including: limitations and use; rated load capacities; and special hazards.

Companies need to keep on file a written description of the program, as well as where and when employees received safety training on file.

Employers must also post applicable manufacturer specifications for power equipment, and any required operating instructions.

Reporting Toxic Chemicals

Part of OSHA’s Hazard Communication regulations includes a provision to compile a list of the hazardous materials that employees may be exposed to while at a worksite.

MOSH wants all employers to take that list, (arranged alphabetically by the common name, with the chemical name, where it can be found, and the date it was first brought to the worksite), and send it to the Maryland Department of the Environment every two years.

Lead Testing Medical Surveillance

Where an employee may be exposed to lead (e.g. lead-based paint, old houses) OSHA has a medical surveillance program to initially test employees with periodic testing against that baseline.

Some of the additional testing that Maryland requires is to carry out initial testing before any assignment to an area with airborne concentration at the action level. This is in addition to the federal testing requirement of at least every two months for the first six months, and then every six months after that.

Maryland also wants employers to test employees at the termination of employment.

Federal guidelines have a process for temporarily removing employees with elevated lead levels from the exposure site for medical protection, with follow up tests for up to 18 months until a final decision is made. Requirements after that period are not defined.

Maryland instead directs employers to obtain a medical determination and continue to provide medical removal benefits until the decision is made about whether the employee can safely return to the same work.

Tree Care and Removal

OSHA doesn’t have regulations for every job, and tree care and removal are examples. The employer often must look at the potential hazards and cobble together safe work procedures.

MOSH decided that risks of tree care (e.g. cutting, pruning, tree removal) were enough that it codified the requirements for that type of work. The requirements include regulations on fall protection, the equipment used, personal protective equipment, fire protection, traffic control, power lines, tree and brush removal, chipping, and training.

INJURY REPORTING

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The U.S. Department of Labor’s Occupational Safety and Health Administration today announced a revision of 29 CFR 1904.39 Injury reporting. The change requires most employers to notify OSHA when an employee is killed, or suffers an injury requiring hospitalization, an amputation, or loss of an eye on the job.
The rule change also updates the list of employers partially exempt from OSHA record-keeping requirements. These new requirements take effect on January 1, 2015 for workplaces governed by Federal OSHA. State plan states will have 6 months following this time to revise their rules to be at least as rigorous as the federal regulation.
The key elements of the rule revision are:
• Reports of amputation and eye loss have been added to reports of hospitalization, and the time requirement has been changed to 24 hours (Amputations do not include avulsions, enucleations, deglovings, scalpings, severed ears, or broken or hipped teeth.)

OSHA also now allows three methods of reporting:

  • By phone or in person to nearest OSHA office (current method)
  • By toll free number to Federal OSHA hotline (to be used if the nearest office is closed)
  • By electronic submission using a fatality/injury/illness reporting application that will be located on OSHA’s website.

The reporting application will include mandatory fields for the required information. If the report does not include the required information, the reporting application will not accept the report. The mandatory fields are:

  • The establishment name
  • Where the incident occurred
  • When the incident occurred
  • The type of incident (i.e., fatality, in-patient hospitalization, amputation, or loss of an eye)
  • The number of injured employees
  • The names of the injured employees
  • The employer’s contact name and phone number
  • A brief description of the incident

It’s important to remember that even though companies with ten (10) or fewer employees, and those considered “partially exempt”, are not required to keep OSHA injury and illness logs (300 and 301) they must still report all injuries or illnesses that meet OSHA definitions in a timely manner.

Federal Equal Employment Opportunity Poster Update

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Fed-EEO-header-8.20.14-JAThe federal labor law poster’s Equal Employment Opportunity (EEO) posting has been updated to include sexual orientation and gender identity on the list of discrimination protections for employers with a federal government contract or subcontract.

This EEO posting revision follows President Obama’s signing of Executive Order 11478. It affects businesses, government agencies, or organizations with a qualifying federal contract, subcontract, or federally assisted construction contract.

The change is to the middle section of the “Equal Employment Opportunity is The Law” poster, where the first paragraph is changed from “…sex or national origin,…” to “…sex, sexual orientation, gender identity, or national origin…”

Safety Services Company offers an annual update service, providing new posters when changes occur in the required postings, at no additional cost. Any posters ordered after July 29, 2014 includes the update.