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Workplace Safety Blog

Written by:
Fred Rine, CEO of FDRsafety and former long-time Managing Director of Safety and Health at FedEx
Jim Stanley, President of FDRsafety and former U.S. Deputy Assistant Secretary of Labor for OSHA
Mike Taubitz, Senior Advisor to FDRsafety and former Global Safety Director for General Motors
Rose McMurray, Chief Transportation Advisor to FDRsafety and former Chief Safety Officer of the Federal Motor Carrier Safety Administration


SEIU uses new opening to go along on OSHA inspections

April 9th, 2014 posted by Jim Stanley

Jim Stanley

OSHA last year cleared the way for union representatives to accompany OSHA compliance officers on worksite inspections even if the union doesn’t represent the company’s workers, and now the consequences are being felt.

Representatives of the Service Employees International Union have accompanied OSHA inspectors on at least three visits to worksites where employees of Professional Janitorial Service were working, according to an article by attorneys Brad Hammock, Henry Chajet and Mark Savit of Jackson Lewis.

OSHA’s February 2013 letter of interpretation said that not only could a union representative be selected to go along on an inspection, but that workers had the right to choose anyone they pleased to act as a representative, including non-employees.

The letter also said that employees in a workplace without a collective bargaining agreement may designate a union-affiliated individual to act as their personal representative. In this capacity, non-employee personal representatives may file complaints on behalf of an employee, request workplace inspections, participate in informal conferences, contest the abatement period in OSHA citations and participate in contest proceedings.

All this potentially provides an opening for union organizers to get a presence in a non-union workplace.

In the case of Professional Janitorial Service, the company is the largest non-union janitorial service in Houston and has been at odds with SEIU for the past seven years

 


OSHA focusing on increased fatalities on communication towers

March 19th, 2014 posted by Jim Stanley

Jim Stanley

OSHA is expressing concern about an alarming increase in the number of deaths resulting from work on cellphone towers and is pointing to fall protection problems as a major contributor.

In a letter to companies in the communication tower industry, OSHA Administrator David Michaels said the fall protection lapses are occurring because “either employers are not providing appropriate fall protection to employees, or they are not ensuring that their employees use fall protection properly.” In 2013, 13 workers in the industry died at worksites, more than the two previous years combined.

Michaels called on the communication tower companies to train incoming workers, make sure they are provided with fall protection equipment and insure that workers actually use the equipment.

OSHA will consider citing companies for willful violations where the equipment is not provided or not used properly, Michaels said.

OSHA inspectors will be examining contracts “to identify not only the company performing work on the tower, but the tower owner, carrier, and other responsible parties in the contracting chain,” the letter said.


OSHA pressuring Cal/OSHA on repeat violations

February 24th, 2014 posted by Jim Stanley

Jim Stanley

Last spring, the U.S. Government Accountability Office took OSHA to task for failing to adequately supervise states that have chosen to retain responsibility for their own occupational safety and health regulation.

OSHA pledged to do better and has increased its oversight. As the law firm Jackson Kelly recently reported, the fallout has been felt in California, which has its own OSHA. The issue concerns the way that Cal/OSHA defines a repeat violation. Under California rules, to be considered repeat, a violation must occur again at the same facility within three years. For businesses without a fixed facility, such as a construction company, the repeat violation has to occur within the same Cal/OSHA region.

Federal OSHA has a different approach and will issue a repeat violation if an employer has been cited for the same or substantially similar hazard anywhere within federal jurisdiction within the past five years.

“Federal OSHA is pressuring Cal/OSHA to align with the federal repeat criteria and base a repeat classification off prior violations statewide,” according to Jackson Kelly. Cal/OSHA is holding a public hearing on the issue, but has not yet proposed a regulatory revision.


USDOT’S CSA program reviewed by Congress

February 10th, 2014 posted by Rose McMurray

Rose McMurray

Earlier this month, the Government Accountability Office released its findings on the U.S. Department of Transportation’s Compliance, Safety Accountability program, known as CSA.

I have written many times about this important enforcement program since it is the principal way DOT uses safety data to identify motor carriers that may be unsafe operators. Companies that ignore or that have minimal understanding of CSA risk being surprised by an enforcement intervention or when customers say that a carrier’s poor scores jeopardize ongoing customer orders.

The GAO performed this review at the request of Congressional members who received complaints that the CSA is flawed in identifying the truly at-risk companies and that small operators were largely getting a “pass” since the government’s databases have little or no performance data about them.

What the GAO concluded was that CSA has been able to improve carrier compliance by allowing enforcers to make earlier contact with companies needing improvement. This is done mainly by warning letters and governmental reviews that focus on the specific area of non-compliance. For example, if a carrier’s CSA scores show a pattern of non- compliance with keeping medical cards up-to-date, FMCSA or its state counterparts would focus its attention on that problem and not expand its review to include, say, hours of service issues (assuming those scores were satisfactory.)

The GAO concludes that CSA ‘s Safety Measurement System (SMS) could be much more effective if it were revised to satisfy the major complaints leveled against it, i.e., that the data collected on carriers does not  have a strong enough predictive ability to link non-compliance and the increased risk of crashes with several of the 7 CSA measures.

For example, in the medical card example I gave above, if a driver has an expired medical card it suggests there may be problems in a carrier’s internal safety monitoring systems that make it unable to flag when a driver has to be re-credentialed. But, does the violation suggest that driver is at increased risk of crashing? Probably not. But as someone who was directly involved in the design of the CSA program, the 7 measures that constitute CSA were intended to be both related to increased crash risk
(prior accidents and unsafe driving being the strongest links), but also the extent to which companies pay attention to their general regulatory obligations. A company that has a poor record manifested by violations received for  expired medical cards,  unsafe driving , or which has crashes disproportionate to their size and road exposure, etc., is probably a company with more deep-seated safety issues. The prior enforcement system DOT used did not have the ability to drill down and uncover these other behavioral traits. CSA does provide this increased ability to assess overall compliance.

Capturing data on small operators

The second area in which CSA needs to be improved, according to the GAO report, is finding a way to capture roadside and crash data on small companies and certain owner-operators since the likelihood of a roadside inspection or other event precipitating a data-generating entry into the SMS is very low with small or single vehicle fleets. This is a more difficult challenge given that using CSA to interdict and intervene with known problem carriers that have sufficient performance data commands priority attention by the enforcers. The government is in a conundrum since it risks criticism if it fails to intervene with a “known” high-risk carrier before that carrier has a crash, but lacks the resources needed to compile a complete profile on all of the carriers under its jurisdiction.

The truck and bus industries want CSA to be better at identifying companies likely to be involved in a crash sooner rather than later. The CSA system‘s design does give greater credence to the stronger predictive measures so it will be interesting to see where CSA goes from here.

I urge you to read the Feb. 3 GAO Report since I am only able to offer a brief glimpse here. As I have often stated, companies should work to understand CSA and should monitor their own carrier profile scores regularly.  In my work with motor carriers, I frequently encounter companies that know very little about CSA and how it impacts their operations.

As DOT moves to link the CSA scores with an overall safety rating scheme in a proposed rule coming later this year, carriers need to get their “house in order” now in order to establish an acceptable level of safety performance. Coming soon will be a proposed rule establishing a new safety rating scheme based, in large part, on the CSA data. While this report provides useful insights into this critical safety program, it will be up to DOT to consider whether the GAO’s findings will prompt changes in the CSA methodology.

For more information about CSA, contact Rose at info@fdrsafety.com or 615-370-1730.


New guidance for OSHA inspectors about combustible dust

January 29th, 2014 posted by Jim Stanley

Jim Stanley

An ongoing concern about OSHA’s protection of workers is its slow pace in creating or updating needed standards. A prime example is combustible dust, which keeps appearing on the agency’s regulatory agenda, but has yet to be finalized.

In the absence of coherent, comprehensive standards, OSHA piecemeals its guidance, the latest example of which deals with the identification of materials that pose combustible dust hazards.

In a recent memo, OSHA addresses situations in which manufacturers and importers lack direct experience with the combustible dust hazards of products they are shipping. OSHA advises the manufacturers and importers to use laboratory testing, published test results or particle size to classify the products.

The guidance was issued for the use of agency inspectors responsible for determining whether products are classified properly for combustible dust hazards by manufacturers and importers. Deadline for compliance is June of next year.


Employers, not government, responsible for determining need for PPE

January 7th, 2014 posted by Jim Stanley

Jim Stanley

An important principle governing the use of personal protective equipment was reaffirmed recently in a Washington state case involving a bank guard who was stabbed and was not wearing body armor.

A compliance officer for the state Division of Occupational Safety and Health cited G4S, the company that employed the guard, for failing to require the use of necessary personal protective equipment, namely body armor. The company appealed and the matter was heard by a hearing officer for the state Board of Industrial Insurance Appeals.

Acting as an expert witness in the case, I determined that the company had done a very professional job in conducting a PPE hazard assessment. That assessment found that bullet proof vests were not required for bank guards. Among the reasons: G4S had reduced the risk of injury to bank guards by training them to avoid engaging with criminals.

I also pointed to OSHA regulations, under which the agency cannot substitute its judgment for the employer’s about the need for PPE unless the employer’s hazard assessment was not done properly.

The hearing officer in the case found the Washington state law also made it the employer’s responsibility to determine what PPE is necessary for a job and overturned the citation.


The problem with publishing OSHA 300 logs

December 16th, 2013 posted by Fred Rine

Fred Rine

OSHA’s proposal to publish online the workplace injury and illness reports from companies with more than 250 workers may at first blush sound like a good idea in this age of transparency, but there are some good reasons not to do this.

Many companies under OSHA’s  jurisdiction have to make an annual report to the Bureau of Labor Statistics on illnesses and injuries on their worksites, and these reports, called OSHA 300 logs, are posted for employees to see. But as my colleague Jim Stanley’s comments to The Wall Street Journal and National Public Radio illustrate, those logs don’t tell the whole story.

The logs contain statistical data on injuries and illnesses, but provide no insight as to the cause. Was an accident caused, for example, by an employee who violated safety rules? That is certainly a possibility, but the natural assumption by a member of the public reading these reports would likely be that the company was at fault. That would potentially create an unfair hit on the employer’s reputation.

In addition, that potential reputational damage may discourage some employers from fully reporting. There are gray areas in the definitions of reportable injuries or illnesses, and some employers may be inclined to fudge.

But the biggest question about the proposal is this: What will publication of these reports do to increase protection for workers? That is a question without a good answer.


Do these 5 OSHA “standards” exist? Not really

December 11th, 2013 posted by Jim Stanley

Jim Stanley

OSHA’s heightened enforcement has made things tough enough on employers without the employers making things harder for themselves. Yet that is sometimes the case, as a recent blog post by Curtis Chambers demonstrates.

Given the complexity of OSHA regulations, it’s probably no surprise that there are “phantom regulations” in the minds of some employers – regulations that sound plausible, but don’t actually exist. Curtis’s post lists five:

Seat belts on forklifts: While many manufacturers recommend that operators wear seatbelts, it is not actually required by OSHA.

Fall arrest required on portable ladders: Many people believe OSHA standards require workers on portable extension or step ladders to use a fall-arrest harness with lanyard connected to an adequate point of attachment if they are working at a height over 6 feet. Not so. See this letter of interpretation from OSHA for an explanation.

Hazard communication annual refresher training: Annual refreshers are not actually required by OSHA, just initial training – although employers may wish to conduct these refreshers given the complexity of the topic.

Hard hats all the time on all construction sites: It is completely understandable why employers require hard hats to be worn at all times on construction sites, but OSHA standards actually only require them when a listed hazard is present.

Bloodborne pathogens training for all workers: While this training may be useful for all workers, it is really only required for those who would normally be expected to be exposed to blood or other body fluids as a part of their normal job duties, such as a surgeon or a janitor who cleans up after an accident.

More details on these myths can be found in Curtis’s post.


Construction facing safety challenges as work picks up

November 25th, 2013 posted by Jim Stanley

Jim Stanley

The resurgence of the construction industry is, of course, good news, but it  also comes with challenges on the safety front, including shortages of experienced workers and managers.

One indicator of those challenges may be an increase in the construction industry’s fatality rate from 9.1 per 100,000 workers in 2011 to 9.5 in 2012, according to the U.S. Bureau of Labor Statistics. (Although it should also be noted that the 2012 rate was still quite a bit below the pre-recession rate of 11.2 in 2006.)

A recent report by Marsh Risk Consulting cites a shortage of skilled construction workers in markets across the country, including Pittsburgh, Seattle, and Phoenix. Construction job openings increased in June to 133,000, marking a 30% rise over the prior month, the largest percentage change of any industry and the highest number of job opportunities in construction since May 2008.

“The increase in new construction activity is bringing an influx of new, inexperienced workers,” the report says. “In this environment, some contractors are stretching their hiring standards to meet project demands.”

The report goes on to say that in some cases workers are being promoted to management without sufficient preparation, creating another safety concern.

“As the economy grows and the number of new construction projects picks up, now is not the time to be lax on safety,” John Moore, a construction safety specialist in Marsh Risk Consulting’s workforce strategies practice, said in a statement. “Inadequate safety performance can lead to employee turnover and various legal, financial and reputational risks. Investing in high-quality leadership will go a long way toward retaining valued workers and maintaining a safe work environment.”


Administrative law judge rules against OSHA on enterprise-wide abatement

November 8th, 2013 posted by Jim Stanley

Jim Stanley

An administrative law judge has fired what may amount to a legal “shot across the bow” at OSHA, ruling that the agency has been overstepping its bounds on the issue of enterprise-wide abatement.

OSHA has been contending since 2010 that when a violation is proven at an employer’s worksite, the Occupational Safety and Health Review Commission can require the employer to abate similar hazards at its other worksites, even if they were not part of the citation.

OSHRC Administrative Law Judge William Coleman ruled in the case Delta Elevator Service Corp., dba Delta Beckwith Elevator Co. that there was “no commission or other precedent” to support OSHA’s position.

However, Attorney Stephen Yohay of Ogletree Deakins noted in a recent article about the ruling that the administrative law judge’s ruling does not set a precedent under OSHRC law.

Given that, Yohay wrote, “Having openly touted the merits of the theory, it will be interesting to see now if OSHA exposes its statutory argument to examination by OSHRC, and perhaps a federal appellate court” and risk a precedent-setting decision against its stance.