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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 ‘OSHA’ Category

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.

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.

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.

Companies’ voluntary audits now being used against them

October 4th, 2013 posted by Jim Stanley

Jim Stanley

What appears to be a new OSHA practice of using a company’s voluntary safety and health audit as a guide to identifying possible hazards to focus on in an inspection should prompt employers to review their procedures for these audits.

For many years, OSHA has had a final policy in effect which said that the agency would not use the voluntary audits to guide inspections. However, in a recent Review Commission decision evidence surfaced demonstrating that OSHA had done just that.

An article by attorneys Mark S. Dreux and Matthew C. Thorne of Arent Fox describes what happened in the case of Secretary of Labor v. BP Products North America, Inc. et al., which involved three citations issued in 2010 stemming from an inspection under OSHA’s Petroleum Refinery PSM National Emphasis Program.

“Despite being ‘troubled’ by OSHA’s ‘blatant contravention’ of its Final Policy, the Administrative Law Judge permitted the evidence, in effect, condoning the practice for future use,” the article said.

The attorneys advise that voluntary audit reports “should be written carefully on the assumption they will become a public document that OSHA may request and review.” They also suggest considering whether to engage outside counsel to conduct the audit under privilege.

This new approach is just one more example of OSHA cutting off its nose to spite its face by erecting barriers to voluntary safety and health programs by good employers, which are one of the best ways to achieve a safe workplace.

Manage Safety Risk – Get a “2 Fer”

September 27th, 2013 posted by Jim Stanley

Jim Stanley

Our guest blogger today is Mike White, a new senior advisor for FDRsafety who comes to us after a great career at GM, where he was most recently Global Safety Director.

Let me explain the title and the premise of this blog.  If you manage for risk, you also manage for compliance.  However, if you manage for compliance, you may overlook risk and hazards that result in serious or fatal injuries.

I recently retired from General Motors where I spent the last part of my career as Global Safety Director.  Prior to that position, I was co-director of our joint efforts with the UAW. I spent more than 30 years in operations before going into safety and wondered, “How did I get here?” In both safety positions, I reported to operations executives. It didn’t take me long to appreciate the wisdom of fully integrating safety with daily operations. Thankfully, the groundwork to manage risk within GM and our joint process had been laid.

I’ll share with you my learning and experiences of why managing risk gets you a “2 Fer.” Most safety professionals are aware that OSHA, by mandate, is a violations-based approach. Identification and mitigation of violations is necessary but not sufficient. You must obviously do those things required by OSHA, but that alone will not eliminate injuries, especially those associated with non-routine tasks.

Risk assessment allows workers to assess the exposure to hazards for both routine and non-routine tasks. Let’s say that a maintenance worker is called to fix a machine where parts are not locating properly during machining or assembly. That worker may have to stand in a designated safe place inside an interlocked perimeter guard and observe the machine in full automatic mode.

Upon diagnosing what is thought to be the problem, the worker will identify a pre-task plan to repair the machine in a safe way, lockout the machine and make the necessary repair. Obviously, if there is no safe position from which to observe the machine or perform the task we have a different challenge.You must obviously do those things required by OSHA, but that alone will not eliminate injuries, especially those associated with non-routine tasks.

What happens with a violations-based approach

If you take a purely violations based approach, as OSHA does, it’s typical to find a rule that says, the worker cannot, under any circumstances, be inside the guard with power on. That’s like telling your mechanic that he/she cannot have your automobile engine running to perform diagnostic work. Good luck with that. Workers know when safety rules do not allow them to perform their jobs, and they usually circumvent or ignore the rules to get equipment running.  I’m not talking about shortcuts for expediency. I’m talking about jobs that cannot be performed because our philosophy and designs of machines and guarding emanate from violations-based thinking.

The other benefit of managing risk is enabling the identification of situations that we never see because they could be on off shifts or are in those remote locations where maintenance or other periodic tasks might be performed.  Asking a worker, “If I was a family member who just hired in, what job (whether daily, weekly or annually) might seriously injure me?” You will find that kind of information typically does not show up in our housekeeping or OSHA audits.  Workers don’t have to be experts to understand the fundamentals of risk.

Lastly, traditional safety terms and programs make both workers and executives glaze over.  Risk, on the other hand, is the language of business and the common hinge for all safety programs. Whether safety, business risk, insured risk, market risk, etc., top management understands the fundamentals of risk without a prep course.

In summary, manage risk and get the “2Fer” of managing both risk and compliance.