Safety Consultants    1-888-755-8010    info@FDRsafety.com

T: 1-888-755-8010
E: info@FDRsafety.com

 

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


A win for due process for drivers and motor carriers, but wait …

June 25th, 2014 posted by Rose McMurray

Rose McMurray

A long overdue reform will now allow drivers and motor carriers to be able to “set the record straight” as it relates to their traffic offenses.

In the past, the Federal Motor Carrier Safety Administration (FMCSA) accepted state-generated traffic offense citations which were uploaded to its Motor Carrier Management Information System (MCMIS) database which collects carrier and driver safety performance data.

These unadjudicated offenses remained on the driver’s record even if the ticket was eventually dismissed or if the driver was found not guilty. For years, the industry had urged FMCSA to recognize the unfairness in maintaining these citations on the record regardless of final court disposition.

Citing the difficulty in correcting information from several thousands of these daily events, FMCSA reasoned that receiving a citation suggested the driver had committed some type of traffic offense otherwise the citation would not have been issued and so recording the event in MCMIS was not unjust. The problem was, though, that once the citation was dealt with by the court, the system did not reflect that a duly appointed court official had subsequently decided the citation should be either dismissed or reduced in severity.

Fundamentally, in the United States where the accused has a right to argue his/her position with the court, this policy of not removing dismissed citations was another perceived injustice to the trucking and bus communities. More importantly, the failure to correct the record became all the more important since the offense affected the driver’s safety performance record as reflected in the CSA enforcement system making the carrier’s unsafe driving BASIC measure potentially misleading to shippers, brokers and insurers. Carriers are acutely aware of how an incorrect record about its safety condition can influence customer choice about whether to hire it to ship its goods or carry its passengers.

Details on the change

Beginning August 23, FMCSA will now permit drivers/motor carriers to request the states where the citation was issued and adjudicated, to accept the outcome of their court case. The states then will be expected to correct the specific traffic record which will then correct the national MCMIS database.

Trouble is, the driver/motor carrier will have to get this correction done themselves by notifying the states through the often vilified Data Q system. The DataQ program is the only way to get a state-issued record corrected since a state law enforcement official issued the citation or roadside inspection report. While the ability to correct the record is a long overdue reform, regrettably the system places the onus on the driver/motor carrier to act on its own behalf, rather than assuming the state court system would communicate with the state DataQ officials to mandate this correction.

In most states, this notification process between state agencies does not exist. For many years, the federal and state governments have recognized this problem and have tried to find effective ways to ensure the adjudication system is harmonized within the state’s traffic records program. Like many good ideas, the solutions require resources and the political will to address the problem.

As we know, the DataQ system has been criticized for its many flaws especially the lack of uniform practices, delays in state response and, in some cases, intractable decision making by certain states. More work by USDOT and state officials to improve the traffic records system to provide for nationwide consistent policies and practices and sensible conversion of statutory differences in state traffic laws need to continue.

For now, this first step is welcomed.


Can metal lathes be made safe?

June 23rd, 2014 posted by Mike Taubitz

Mike Taubitz

An article on an Australian safety website described the tragic death of a worker whose coat was caught in a lathe and asked the question that is the title of this article: Can metal lathes be made safe? The article went on to offer the following ideas:

“How can these risks be minimised? A simple interlocked chuck guard connected via a Category 4 control system in accordance with AS 4024.1 that prevents the machine from starting while open will remove or significantly reduce most lathe safety risks….  When lathes need to be run with the guard open during set-up, for example, fit a two-hand control system that allows the operator to run the machine at a safe, low speed, rather than an interlock that can be switched off. With both hands away from the rotating hazards and ejection hazards minimised due to the safe low speed, or jog mode, the operator/setter is protected.”

I agree – partially.  Innovations in safeguarding can often be incorporated when designing and building new machines.  Those same innovations are often not feasible for retrofit – that’s the reason for my passion around the concepts of “Design-in Safety” and “Prevention thru Design” (PtD). The dilemma is that few engineers are even told they have a responsibility to consider occupational safety in the design of machines and systems.  Then, when they get in the real world, they interface with safety people who may not have the technical acumen to deal with issues of design.

Back to lathes.  Before putting on interlocked chuck guards, I would also want to know which tasks cannot be performed with the guard in place – and two hand controls may not work.  When setting up a part in a lathe, you typically bring the tool into position to find the center point/depth of cut.  You must have line of sight and need to move the tool by hand.  It has been a long time since I’ve done that task but I would like someone to show me how two-hand controls could be used during lathe setup!  This is the reason for my constant use of Task Based Risk Assessment (TaBRA).  This methodology identifies when power is needed and those steps where employees may, of necessity, have close contact with equipment.

The problem with work-arounds

Many of the fatalities (over 80 during my career) and serious injuries I have investigated involved a task where the employee had to “work around” the safeguarding to accomplish the task.  Sometimes there is a failure to comprehend all the variables of the work during design of the equipment and/or safety procedures.  Perhaps it is for this reason that ANSI B11.6, the US National Standard for Manual Turning Machines with or without Automatic Control, is mute on the ideas offered in this article.

The ANSI B11 family of general industry machine safety standards is based upon achieving acceptable risk through the good faith application of the hierarchy of controls.  The B11 Committee understands that there is no such thing as zero risk and that employee intervention is necessary for specific tasks that may force use of training, warnings, procedures, administrative controls and PPE to achieve acceptable risk.  Feasibility of engineering safeguards is always a key consideration.

If you think it’s a good idea to never allow a worker to be around moving equipment/machinery, tell that to your mechanic the next time you take your automobile in for troubleshooting or a tune-up.

 

 

 


A well-deserved backseat for OSHA’s I2P2

June 2nd, 2014 posted by Jim Stanley

Jim Stanley

OSHA’s proposed Injury and Illness Protection Program, known as I2P2, apparently won’t be seeing the light of day anytime soon, if ever, and that is a good thing for workers and employers.

The proposed program was pushed back to the long-term action section of OSHA’s spring 2014 regulatory agenda. Placement on the long-term agenda often can last for years and in any event means that it is unlikely to resurface during the current administration.

I2P2 would have required all companies under OSHA’s jurisdiction to implement a safety program with detailed requirements dictated by the agency. The problem, as I and many others have commented, is that no government standards could appropriately address the wide variety of circumstances across industries and employers.


OSHA overturned on employer knowledge of scaffolding hazard

April 23rd, 2014 posted by Jim Stanley

Jim Stanley

The Occupational Safety and Health Review Commission recently overturned an OSHA citation that partly revolved around the issue of whether an employer should have known of a hazardous condition that resulted in a scaffolding accident.

As noted in a client bulletin from the Sassaman consulting firm, the case involved scaffolding that was not fully planked when used on a demolition job. OSHA issued a citation on the grounds that the employer should have known about the condition through the exercise of due diligence.

But the Review Commission turned back that argument, saying that “that there is insufficient evidence to show that the condition was present for a long enough time that the employer should have known about it”.


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.