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Occupational Safety Blog

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 No. 2 at OSHA headquarters and Mike Taubitz, Senior Advisor to FDRsafety and former Global Safety Director for General Motors.


Archive for the ‘Enforcement’ Category

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DOT making mid-course changes to CSA initiative

September 19th, 2011 posted by Rose McMurray

Rose McMurray

Even as the motor carrier industry and its customers get accustomed to the government’s new safety measurement system -—Compliance, Safety, Accountability (CSA) — the Federal Motor Carrier Safety Administration is making certain improvements to the program.

The most important revisions appear likely to come in the seven BASICS — the individual measures that calculate carriers’ on-the-road history and crash involvement.

Right now, five of the seven BASICS can be seen by the public while the Cargo Securement and Crash BASICS are withheld from public view (although available to the individual motor carrier using their DOT-issued PIN). DOT has indicated that it will likely make minor tweaks to the five public BASICS, significant changes to the Cargo Securement BASIC, and a process for improved validation of the Crash BASIC.

Changes to the Cargo BASIC

First, the Cargo BASIC was found to disproportionately affect certain operating segments, particularly flatbed carriers. In addition the severity weights that the government attached to violations that reflect the violation’s correlation with crash risk were assigned high values in this BASIC.

In the next few months, you are likely to see a major recalibration of the Cargo Securement BASIC which will reflect a more valid and fair measure of safety risk. In the meantime, carriers should not assume that the severity weights will be seriously diluted and should act now to remedy the conditions that have resulted in a high score in this area. Among other measures, load securement refresher training and better monitoring and checking of freight before it leaves the terminal by someone other than the driver/employee who originally secured the load can help contribute to better outcomes in this BASIC.

Alterations to the Crash BASIC

There is perhaps no BASIC more important to the entire truck/bus/shipper/enforcement
community than the Crash BASIC. This is because the government’s premise is that “past crashes are the best predictor of future crashes” and the entire CSA program was developed to establish competent ways to identify and intervene with carriers that pose the greatest risk to the travelling public before they are involved in a crash. Find the highest risk operators, intervene aggressively with them, prod them into compliance or get them out of the transportation business.

Historically, though, there were problems caused by the limitations of the data source that populates the Crash BASIC and which records crash involvement, i.e., police accident reports. This is mainly due to the nature of crashes — usually local police respond, fill out the report, and do not always state on the report which driver(s) “caused” the crash.

So when the states report the crash, the report usually notes that a commercial vehicle was involved in the accident but the form does not always identify the accountable party. This often results in a carrier being coded in the government’s databases as having a recordable accident that may or may not have been the carrier’s fault. For decades, DOT has tried to find a resolution of this problem but, since it requires thousands of police units, the states, etc., all being willing to agree to a reasonable and simple process, including how to pay for it, the solution has been elusive.

It seems, though, that progress is being made to establish a way for carriers and drivers to ask DOT for a review of specific accident reports that would be conducted by a trained crash analyst. The government is working on a new procedure that will allow for a review and decision regarding fixing “fault” for individual accidents where the cause is unclear and allow for the carrier to have some degree of due process in establishing whether a particular crash could have been prevented by the truck/bus driver.

This opportunity to challenge crash reports, especially after the carrier/driver has exhausted its efforts at the state/local level, is something the industry has been persistently pressing the federal government to establish. It is unclear when this new procedure will be “open for business” but until it is up and running and includes time for the government to evaluate its workability, the Crash BASIC will likely remain private to the motor carrier.

Companies should analyze their crashes

Again, as earlier urged, companies should be analyzing their crashes and striving to reduce the risks of having any crashes at all by focusing on the full safety management strategies of the company. If you believe your drivers are not at fault and seem to “always be in the wrong place at the wrong time” when they get into accidents, you may want to reconsider that point of view. Evidence points to the fact that most accidents are, in fact, preventable.

If, for example, your drivers have many intersection crashes, explore if the driver is perhaps speeding through the yellow light and not clearing the trailer from the intersection before oncoming traffic enters; for rear end collisions, ensure all lamps and lights are properly working so that trailing traffic is warned the driver is braking. In the end, it is very unlikely that the other driver is always the culprit.

As always, carriers should continually monitor their CSA scores, take corrective action, and strive to earn BASIC scores that signal that safety is a core value and that customers can be confident that the carrier runs a safe operation.

Rose A. McMurray, former Chief Safety Officer at the Federal Motor Carrier Safety Administration, is Chief Transportation Advisor at FDRsafety and consults with carriers on improving their CSA scores and other motor carrier and road safety issues. She may be contacted at rmcmurray@fdrsafety.com or 1-888-755-8010.

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Posted in Accident Prevention, CSA 2010, Enforcement, Transportation safety | 1 Comment »





How to succeed at an Informal Conference after being cited by OSHA

September 7th, 2011 posted by Jim Stanley

Jim Stanley

Receiving an OSHA citation can be a bit unnerving, but every employer should remember that receiving the citation is in some ways just the beginning, not the end, of the process.

Scott Jacoby, health and safety director for a major metals recycling business, has been on the receiving end of OSHA citations over the years. I asked him to write a guest post on how to handle the OSHA Informal Conference, which any employer may request within 15 working days of receiving a citation. The purpose of the conference is to discuss the alleged violations and negotiate a resolution if possible. Here’s what Scott has to say:

The OSHA Informal Conference is not a place to “wing it.” Over time, I have developed a basic method I call “The Script” to prepare and participate.

In my opinion, the fines are basically meaningless in most cases. The real long term risk to the business is the level of citation/violation. My general goal is to achieve a downgrade of each violation to the lowest possible level. Before the conference I have already decided what violation classifications are acceptable and what I consider to be a deal breaker. In general, this is based upon the future risk to the company of being cited for repeat and willful violations. Remember, OSHA wants to make a deal – they don’t want employers to contest violations!

Elements of “The Script”:

1. Introductions. Formally introduce each person from the company who is attending the conference. I have always found three attendees to be a good number. Most likely a representative from senior leadership, one from safety and a technical expert is enough. You need to give these folks very specific direction on what to say, when to say it and how to say it.

2. Senior leadership statement. The senior leader must express with conviction his/her belief in and commitment to providing a safe and healthful work environment.

3. Safety and health program. Review your efforts in relation to your program requirements, focusing on the positive aspects of the program. You must demonstrate your company’s commitment to making an investment in safety.

4. Enterprise-wide response. Make sure that OSHA understands that the corrective action and abatement for the items identified goes beyond the specific area that was cited and that all similar situations throughout the facility will also be corrected. Provide a quick rundown on hazard identification, risk assessment and corrective action.

5. Know more than they do. You need to be an expert on each alleged violation: manufacturer information, source standards, operator instructions, technical guidelines, OSHA compliance directives and letters of interpretation – everything!

6. Likely to cause death or serious physical harm. That is the basis of a serious violation. Make sure that OSHA has objective evidence regarding this issue on each alleged serious violation. Remember, failure to complete an inspection, audit, inventory or some other basic administrative compliance requirement, such as maintaining records, should never be the basis for a serious violation.

7. They probably made mistakes. Did they cite the wrong standard? Did they follow their own industrial hygiene sampling protocol? Did they follow the Field Operations Manual? Did they actually witness the alleged hazardous condition? Failure to follow OSHA procedures gives you very strong arguments for downgrading or deleting a violation.

8. Lawyers. Don’t bring them to the informal! But in some manner you should relate that you have already sought legal guidance on the alleged violations and are prepared to contest. However, OSHA should also be aware that you would rather come to a negotiated agreement. Have a completed and signed “Notice of Contest” letter prepared and sitting on the table during your discussions.

9. Start with the easy issues. You should be able to get some basic agreement on downgrading or deleting alleged violations that were obviously cited incorrectly. This gives you a chance to get in the flow with OSHA and move closer to the finish line. Remember, OSHA wants to settle.

10. Be done with it. Ensure you have completely abated all the violation items so that you can walk out the door and the only thing you need to do is send a check.

11. Dress appropriately. Might not seem like a big thing, but an appropriate appearance is in your favor.

Scott Jacoby can be contacted at (781) 690-8739.

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Posted in Enforcement, OSHA | 1 Comment »





OSHA alert points up confined-spaces, dust hazards of grain handling

August 24th, 2011 posted by Jim Stanley

Jim Stanley

A recent report from Purdue University and a new hazard alert from OSHA point up the wide range of safety threats to workers if adequate precautions are not taken when working in grain handling.

The Purdue report says that 26 workers died in 2010 in grain bin engulfments and 51 workers were entrapped overall – the most since Purdue began keeping records in 1978.

One way in which workers can become engulfed when entering bins is if they stand on moving or flowing grain, which pulls workers under. Workers also risk suffocation if they enter bins that don’t have enough oxygen or contain hazardous atmospheres. Incidents in grain bins often result in multiple deaths because workers attempt to rescue their coworkers and then become trapped themselves.

And this month, OSHA issued a hazard alert to better educate employers and workers about the safety challenges inherent in handling grain, which beside engulfment include grain-dust explosions, falls and crushing injuries and amputations in working with grain-handling equipment.

Besides issuing a hazard alert, OSHA has been active on the enforcement front. In the past year, the agency has issued more than $4 million in fines to five companies for alleged violations involving the deaths of five workers and injuries to two others.

“Employers need a safety program that gives full attention to all these hazards,” says Jim Manness, former Corporate Safety & Compliance Officer for Bunge North America, a large international grain company. “Consistent implementation is critical,” says Jim, who provides consulting through FDRsafety.

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Posted in Accident Prevention, Enforcement, OSHA | 1 Comment »





Customers threaten to cancel trucking contracts because of high CSA scores

July 26th, 2011 posted by Rose McMurray

Rose McMurray

It’s been a little over six months since the USDOT launched the public availability of its new truck and bus safety measurement system and some motor carriers are reporting unpleasant surprises.

You may recall that this new enforcement regime referred to as CSA for Compliance, Safety, Accountability, changes the way government assesses the on-the-road performance of thousands of companies falling within DOT’s oversight. While it’s still too early to know the impact and effectiveness of the new system, I can report on some of the early experience carriers are reporting with the conversion to CSA.

Perhaps the most surprising development, just like the government had been warning for years, is that the CSA system is capturing a great deal more operating information about truck and bus companies, including the activities of their drivers. That data, in turn, is impacting the company’s safety scores posted on the government’s websites.

I have spoken to several company officials who are “unpleasantly surprised” to see driver violations posted to the company safety profile. Surprising because it is the first time the company has become aware of certain driver(s) receiving citations or tickets. This has caused many companies to reemphasize their requirements for drivers to fully disclose to them their driving infractions.

Remember that in CSA the most serious weight is given to the measures dealing with driving actions—crash involvement, unsafe driving and fatigue or hours of service violations—since those measures have been proven to be the greatest predictors to a driver having a future crash. And crashes are what the government is seeking to prevent.

Customers threaten to cancel business

Another area of surprise to some firms, particularly the ones with poor safety scores, is the reaction of some of their customers. I recently received a frantic call from a Midwest trucking company asking for help in driving their scores down to below intervention threshold levels.

This company has a contract with a very large shipper that is threatening to break the contract because the carrier has all 5 publicly posted CSA measures above the intervention thresholds. The customer fears it is at risk if it continues to conduct business with a carrier that is seen as having serious safety challenges. If this customer were to cut its business with the carrier, it is highly likely the trucking company will be forced out of business.

One other interesting aspect of the changeover to CSA is the peer grouping concept where companies are compared to similarly situated companies so that comparisons are fairer. Because CSA measures are time and severity weighted, older violations lose their emphasis over time.

For example, a violation that occurred in October 2009 would be weighted “less” in the CSA Safety Measurement System than one incurred in October 2010. However, the algorithm that calculates all of this also takes into account whether others in your peer group are improving at the same time. If they are (and you have no way of knowing it), your individual score could increase from one month to the next because others in your peer group improved “faster” even though your company has received no new violations since the last data update.

How to get out of the CSA doghouse

So, what’s a company to do to get themselves out of the CSA “doghouse?” I will address that answer in more detail in my next CSA blog. However, for now my advice is to ensure your employees fully understand the importance of abiding by the DOT requirements so that, to the extent possible, inspection reports are clean and without violations. Drivers should be reminded that, more than ever, any traffic or roadside violations, including warnings, are being emphasized more in CSA.

In short, stay informed and engaged in the safety operations of your company.

To keep up with developments on CSA, subscribe to this blog and have it automatically sent to your mailbox or reader.

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Posted in CSA 2010, Enforcement | 5 Comments »





OSHA begins forklift emphasis program in 4 states, but all employers should take note

July 17th, 2011 posted by Jim Stanley

Jim Stanley

OSHA’s new emphasis program aimed reducing accidents involving powered industrial trucks is confined to four Southern states, but employers across the country would be well-advised to pay close attention.

Violations involving forklifts are low-hanging fruit for OSHA inspectors everywhere and all employers who use these vehicles should audit their safety programs and take corrective action if needed.

The four-state emphasis program primarily will focus on the training operators receive, maintenance and repair, and the pathways the trucks travel to ensure clear visibility and determine any possible struck-by hazards.

“Powered industrial trucks are a significant source of serious and fatal injuries to workers,” said Cindy Coe, OSHA’s Regional Administrator in Atlanta. “Employers are responsible for ensuring that workers follow the proper safety procedures and for eliminating hazards from the workplace.”

The regional emphasis program, which began May 29, will extend through Sept. 30, 2012.

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Posted in Enforcement, OSHA | No Comments »





Companies should be wary of OSHA’s Corporate-Wide Settlement Agreements

July 5th, 2011 posted by Jim Stanley

Jim Stanley

OSHA is stepping up its use of Corporate-Wide Settlement Agreements in an effort to make more efficient use of its compliance resources, but companies should think carefully before signing off on such an agreement.

Under a CSA, companies that have been cited can agree to correct similar issues at all of their locations. But companies must be careful because failure to follow the terms of the Corporate Wide Settlement Agreement can create even greater liability.

“OSHA has made limited use of CSAs in recent years,” said OSHA Assistant Secretary David Michaels. “However, we believe that the revised directive will be an effective tool to secure worker safety and health protections. Through an employer’s formal agreement to abate serious hazards at multiple facilities, CSAs are an improvement over traditional enforcement measures that could take much longer.”

OSHA has recently issued a new directive regarding Corporate-Wide Settlement agreements that are both national and regional in scope. The directive states that CSAs may “go beyond the subject of the citations/violations to include additional safety and health program enhancements” that were not the reason for the original inspection or citations/violations.

One of the problems for companies with numerous locations is that it can be extremely challenging to monitor performance under the agreement at all of its locations. If OSHA determines non-compliance with issues identified in the CSA, the consequences for the corporation can be significant (Failure-to-abate Notices, repeat or willful violations).

In my opinion, corporations need to examine these agreements very carefully and should seek significant concessions from OSHA in exchange for signing.

Agreements are now required to include a termination date no more than two years from the settlement date. OSHA posts Corporate-Wide Settlement Agreements on its Web site.

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Posted in Enforcement, OSHA | 2 Comments »





Learn how to improve your CSA score with these 5 tips

June 16th, 2011 posted by Rose McMurray

Rose McMurray

As former Chief Safety Officer of the Federal Motor Carrier Safety Administration, I led the design and implementation of CSA – the federal government’s new program to measure the safety performance of motor carriers, including truck and bus operators.

From that vantage point, it became clear that there were five key steps companies could take to achieve satisfactory CSA scores, and I’ll describe those a little later in this post.

Naturally, the most important reason for a company to operate its trucks or motor coaches safely is to protect the driving public, passengers and their own employees. But there are other implications as well: unsatisfactory scores can increase insurance premiums and result in lost business. In addition, the Federal Motor Carrier Safety Administration is using the scores to prioritize its enforcement actions. Companies with low scores will be targeted.

Following are five tips for succeeding under CSA – short for Compliance, Safety, Accountability. For more detail on how to execute on these five suggestions, see a full-length CSA article I have written that is posted elsewhere on the FDRsafety site.

And an important note: CSA covers not just truck and bus companies but also other organizations that use trucks and buses in their operations.

Guideposts for CSA success

1. Make safety a core, non-negotiable value of your company.
This doesn’t mean merely posting a sign in the workplace that “safety is important in our company.” It is communicated by the way the company is managed, the behavior and attitude of company officials and the actions management takes when a safety violation occurs.

2. Get educated on CSA and explain it clearly to your employees.
Ensure that drivers, maintenance shop staff, trainers, executives, etc. understand CSA and its impact on the company’s bottom line and how each of them contribute to the scores earned by the company.
 
3. Examine the data maintained by the government that underpin your CSA scores and ensure the data is accurate.
Aggressively pursue data correction through the DOT DataQ’s process and get your record correct. Ensure your registration data (MCS-150) information is updated. 

4. Implement specific, competent countermeasures to address your safety deficiencies.
If any of your measures exceed the “alert” threshold, put into place known effective measures that correct the reasons your company is receiving violations.
 
5. Recruit, train and vigorously monitor drivers.
Driver performance is a backbone of the CSA system since violations in the three driver categories (Unsafe Driving, Fatigued Driving and Crash History) are given added emphasis in the measurement calculations.

Rose McMurrary, Senior Transportation Advisor for FDRsafety, retired earlier this year as Chief Safety Officer of the Federal Motor Carrier Safety Administration. She now consults with companies on improving their CSA scores and other transportation safety issues. Rose can be contacted at 615-370-1730 or rmcmurray@fdrsafety.com.

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Posted in Accident Prevention, CSA 2010, Enforcement | No Comments »





OSHA wins new round on enforcement power, this time on records

June 14th, 2011 posted by Jim Stanley

Jim Stanley

OSHA has won another round in its bid to expand its enforcement power, underscoring the need for employers and insurance companies to be careful not to dig a hole for themselves when they conduct safety audits and accident investigations.

A U.S. District judge in Illinois ruled recently that Grinnell Mutual Reinsurance Company had to turn over to OSHA loss control reports, applications for insurance coverage, correspondence, site safety inspections and other safety-related documents it prepared for a grain company where a fatal accident occurred.

As Matt Morrison of the Sherman and Howard law firm wrote, this decision underscores the need for companies to immediately consult legal counsel after an accident. Not only will that help the company understand its legal rights, it may also allow the company to conduct its internal investigation under the auspices of attorney-client privilege, which would protect the investigation from outside disclosure.

Recognizing that OSHA, as well as plaintiffs in lawsuits, will seek safety-related documents after an accident, Morrison offered the following recommendations to employers, insurance companies and consultants:

• Record the known facts, not opinions or speculation. Speculation or opinions, particularly as to the cause of an accident or the existence of a hazard, are often misinterpreted as admissions as to what actually happened. If a cause is only “suspected” or “unknown,” say so.

• Avoid placing blame or admitting legal violations. Statements that supervisors violated company rules or committed “OSHA violations” can significantly impact a company’s liability.

• If a problem is noted, always follow up and document that corrective action has been taken. Almost all safety audit forms have a space to note recommended or completed corrective action. Failure to take corrective action may be construed by OSHA as willful conduct.

• Be truthful. A false statement in a safety audit can be very damaging. Make certain that all audits are carefully reviewed and, if necessary, corrected for accuracy.

• Consider a safety documentation retention policy. Depending on your company’s needs, it may be unnecessary to retain health and safety audits or other safety documentation indefinitely. Make certain any document retention policy complies with applicable law.

• Insist that others preparing audits or other safety documentation for your company recognize the importance of careful drafting. Insurance companies, outside consultants, or others providing safety or loss control services often commit the errors discussed above. Discuss your concerns about proper documentation in advance.

• Seek legal advice immediately after a fatal or catastrophic accident, and in other appropriate circumstances. Because of potential liability, legal counsel should be consulted in the preparation of accident reports, safety audits, and other documentation. It may be possible to have the company’s investigation conducted under the “attorney work product” privilege or the “attorney-client communication” privilege, thereby providing protection against disclosure to OSHA or third parties.

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Posted in Courts, Enforcement, OSHA, Recordkeeping | No Comments »





OSHA takes another step towards reasonable regulation

June 10th, 2011 posted by Jim Stanley

Jim Stanley

OSHA took another step this week towards a more reasonable stance on regulation by announcing a final rule that removes some outdated requirements and streamlines and simplifies some standards.

Although the rule is part of an ongoing program to periodically review OSHA regulations, it meshes with steps taken earlier this year by OSHA shortly after the Obama administration announced an initiative to improve the regulatory environment for business. In those moves, OSHA withdrew ergonomics and noise control proposals.

OSHA made a point of noting that linkage in its press release about the final rule.

The final rule changes or eliminates requirements in the following areas:

• Respiratory protection
• The definition of potable water
• Hand-drying equipment
• Commercial diving
• Transmission of exposure and medical records to the National Institute of Occupational Safety and Health

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Posted in Enforcement, OSHA, Recordkeeping | No Comments »





OSHA initiative on heat illness should be viewed as more than just a suggestion

May 12th, 2011 posted by Jim Stanley

Jim Stanley

OSHA sometimes undertakes educational initiatives, such as one issued last month about the hazards of working outdoors in the heat. But employers would be unwise to ignore the suggestions as “optional” for two important reasons.

The first, of course, is that heat-related illnesses can be life-threatening. OSHA says in educational materials on its website that thousands of outdoor workers are affected each year with conditions ranging from mild heat exhaustion to heat stroke, which can be extremely dangerous. OSHA’s materials offer suggestions on how to prevent those problems.

The second reason, as Rod Smith of the Sherman and Howard law firm pointed out in a recent article, is that “OSHA enforcement may be just around the corner.”

OSHA has in the past used its general duty clause to penalize employers where workers suffered from heat-related illnesses in indoor environments such as glass plants. But the general duty clause could just as easily be used for enforcement outdoors.

To use the general duty clause, OSHA must show that the hazard involved was a “recognized” one and that there were feasible means to avoid the hazard.

As Rod Smith points out, “the very information that OSHA is distributing as part of its current heat illness initiative could be used in later cases to show that employers, or their respective industries, recognize the hazards of working outdoors in high temperatures and the existence of feasible means to avoid such hazards, including the implementation of programs to provide adequate water, shade, and rest.”

To keep up with the latest on OSHA compliance, subscribe to this blog and each new posting will be sent automatically to your email box or reader. You may also subscribe to our newsletter for timely articles about OSHA.

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