Author Archives: David Sparkman

Public Citizen, Labor Groups Seek OSHA Heat Standard

Public Citizen and 111 other safety and labor groups recently called on the Occupational Safety and Health Administration (OSHA) to create a federal standard for protecting workers from heat stress, which they say is aggravated by global warming. Whether or not OSHA chooses to respond to this call by proposing a standard some time in the future, it still obligates employers to develop programs that adhere to OSHA-recommended practices. “OSHA has an obligation to prevent future heat-related injuries, illnesses and fatalities by issuing a heat stress standard for outdoor and indoor workers,” the organizations said in a late April letter to Alexander Acosta, secretary of U.S. Department of Labor (DOL), and Loren Sweatt, Deputy Assistant Secretary of Labor and chief of OSHA. More than 815 U.S. workers were killed and 70,000 seriously injured by heat stress between 1992 and 2017, the advocates note, citing the Bureau of Labor Statistics. This is likely an underestimate, they added, asserting that many injuries and illnesses are underreported in the U.S., especially in the sectors employing vulnerable and often undocumented workers. They also pointed out that heat is not always recognized as a cause of heat-induced injuries or deaths and can be easily misclassified, because many heat-related symptoms overlap with other more common diagnoses. OSHA currently issues citations to employers based on the general duty clause, a part of federal safety law that requires employers to maintain a safe workplace even in the absence of regulations and standards targeting specific safety practices. The agency for years also has engaged in a public education campaign aimed at employers laying out specific steps for them to take to address heat dangers. However, the advocates argue that most employers will not implement practices to prevent heat stress unless required to do so. “A federal heat stress standard would help to prevent countless illnesses and deaths caused by heat, benefiting workers and employers alike,” they said. “In its absence, rising temperatures are projected to cause an increase in heat-related workplace illness, a dramatic loss in labor capacity, decreased productivity, and an increase in workers compensation and hospital-related costs.” The states of California, Minnesota and Washington—along with the U.S. military—already have established standards for heat exposure, the advocates note. They further explain that in general all states with approved occupational safety and health programs are required to have standards “at least as effective” as federal standards. NIOSH Suggests Standards Public Citizen also observed that the National Institute for Occupational Safety and Health (NIOSH) already has developed criteria for a possible federal standard for occupational exposure to heat and hot environments, specifically covering recommended engineering and administrative controls and personal protective equipment (PPE). The NIOSH-recommended standards include: ● Reducing physical demands of the work by using powered assistance for heavy tasks. ● Helping workers acclimate to high temperatures by gradually increasing exposure to hot conditions over 7–14 days. ● Scheduling new workers for no more than 20% of the usual duration of work in a hot environment on the first day with no more than a 20% increase each day. ● Encouraging water intake at frequent intervals to prevent dehydration (1 cup every 15–20 minutes). ● Providing a shaded and/or air-conditioned space nearby. ● Monitoring workers for complicating conditions such as alcohol ingestion, diarrhea and low-grade infections. ● Cooled air, cooled fluid or ice-cooled clothing, and reflective clothing or aprons for workers in hot industrial environments. In its letter, Public Citizen pointed to an Occupational Safety and Health Review Commission decision earlier this year vacating an OSHA citation brought against an employer under the General Duty clause citing the lack of a federal heat standard. The commission said, “The [Labor] Secretary’s failure to establish the existence of an excessive heat hazard here illustrates the difficulty in addressing this issue in the absence of an OSHA standard.” The advocates’ letter urged the agency to adopt the course of action that Public Citizen and 130 other organizations sought in a petition filed last summer. “OSHA has a single acceptable course of action in response to this decision: promulgate a heat standard to put employers on notice of what they must do to protect workers and enforce the standard.” Current Obligations Stand OSHA is continuing to investigate and issue citations to employers based on the General Duty clause and it is not likely to back down any time soon simply because of the lack of a specific standard. “OSHA investigates these heat-related incidents and complaints to their fullest. As such, it is important to review your company’s heat-related safety and hazard prevention and heat identification to ensure it complies with OSHA, especially early in the season,” says attorney Wes Gerrie of law firm Goldberg Segalla LLP. The situation can turn out to be particularly serious in the spring, when hot weather arrives suddenly early in the season before workers have had a chance to adapt to warm weather, he warns. An employer with workers who could be exposed to hot environments must establish a heat illness prevention program to satisfy OSHA. The agency has said that such a program should include: ● Training all employees and supervisors on heat illness prevention. ● Providing enough fresh water for each employee and encouraging them to drink. ● Providing access to shade and encouraging employees to take a cool‐down rest in it; they should not wait until they feel sick to cool-down. ● Closely observing all employees and monitoring for signs of illness. ● Allowing new or returning workers to gradually increase workloads and take more frequent breaks as they acclimate to, or build a tolerance for, working in the heat. ● When possible, creating engineering controls such as air conditioning and ventilation which is not only a preventative measure, but can be used to assist in emergency situations as well. ● Developing and implementing written procedures, specific to the worksite, for heat illness prevention, including plans on how to handle medical emergencies and steps to take if someone shows signs or symptoms of heat illness. ● Planning for emergencies and training workers on prevention, including any of the previous written procedures. ● Documenting any and all training, discussions and emphasis on heat-related prevention, training and safety. ● Overall, OSHA’s message is “Water. Rest. Shade.” Ingrain this slogan in your workers’ minds during pre-work meetings. “In the end, although OSHA does not have a specific standard that covers working in hot environments, employers nevertheless have a duty to protect workers from recognized serious hazards in the workplace, including heat-related hazards,” Gerrie says. Let's block ads! (Why?)

Gauging the Impact of Association Health Plan Court Ban

The U.S. Department of Labor (DOL) is appealing a federal district court judge’s decision striking down the regulations that had substantially widened access to association health plans (AHPs) for small and large employers. The Labor Department also issued a policy statement providing interim relief for those employers who already had obtained health coverage from AHPs under the same DOL regulations before the judge handed down his decision on March 28. DOL declared that it is committed to taking all appropriate action within its legal authority to minimize undue consequences on employees and their families. It said employers participating in insured AHPs can generally maintain that coverage through the end of the plan year or, if later, the contract term. During this time, DOL said, it will not pursue enforcement actions involving AHP that had relied on DOL’s rules. DOL stated, “The department is committed to taking all appropriate action within its legal authority to minimize undue consequences on employees and their families.” Abruptly terminating coverage from an AHP would cause significant disruption, according to DOL’s Employee Benefits Security Administration (EBSA). “For example, new coverage would impose new deductibles and out-of-pocket maximums without giving credit for prior participant out-of-pocket expenses paid,” EBSA argued. “Moreover, switching insurance can cause gaps in coverage, leaving individuals without much needed benefits for chronic diseases and emergency care until the new insurance becomes effective.” About 30 new associations had been formed based on the rules change before the court’s reversal was announced, notes attorney Jeff Belfiglio of law firm Davis Wright Tremaine. For example, local chambers of commerce in Nevada had joined with the Anthem insurance company to offer coverage for small employers. More employers may have chosen to join AHPs except that their states used their regulatory authority to effectively stop AHPs from being formed under the new Trump DOL rules, and few are likely to proceed with more AHPs unless the district court ruling is overturned, Belfiglio points out. However, AHPs can and still are forming under the narrower federal guidelines that were in existence before the newer rules, and which both the AHP rule and the court decision left intact. The Political Game Before Trump’s DOL wrote the new rules, federal law had long allowed AHPs to be created and operate in a more limited form under the Employee Retirement Income Security Act of 1974 (ERISA). The main difference was that the older rules required much more narrowly defined commonality of interests for employers to be able to join an AHP. Belfiglio adds that the court decision also could impact a proposed regulation allowing employers to band together more easily in Association Retirement Plans (ARPs) or Multiple Employer Plans (MEPs). Last year, DOL issued proposed regulations designed to allow multiple employers to join in an ARP or a plan sponsored by a Professional Employer Organization (PEO). The AHP rules were seen as an attempt to weaken Obamacare because such plans were allowed to deny coverage for a number of treatments that had been required under the legislation, including mental health and substance abuse treatment, certain kinds of maternity care and ambulance rides. The judge whose decision struck down the Trump program described it as “clearly an end-run around” Obamacare. The lawsuit to block the AHP rules was filed by Democrat attorneys general of 11 states. The judge ruled that the membership criteria for the new AHPs were too broad and stated that the portion of the program that allowed the self-employed and partnerships to join such plans was nothing short of absurd. “At this point small employers in some states (especially Washington) can still find opportunities to join AHPs that have been approved under the old DOL guidance,” explains Belfiglio. “Employers in other states, and working owners everywhere, will have to await a judicial or legislative resolution of what ‘employer’ really means under ERISA.” DOL announced that it is interested in learning about any problems that AHPs and their member employers and sole proprietors may have encountered after the district court's decision. To request information or assistance, members of the public may contact EBSA at or toll free at 866-444-3272. The agency also said it will update its website at as more information becomes available. Let's block ads! (Why?)

Court Severely Limits Association Health Plans

Announced with great fanfare in 2017, the Trump Administration’s rules change allowing small employers and the self-employed to provide their employees with health insurance through Association Health Plans (AHPs) has been struck down by a federal district court judge. In October 2017, President Trump signed an executive order directing the Department of Labor (DOL) to develop rules governing the formation and management of AHPs. Adopted in final form last year, the rules allowed small businesses and self-employed professionals and partnerships to join together and, if they were bound by geography or type of industry, to create health plans to function much like those used by single large employers. In addition, the new AHPs were not subjected to Obamacare’s requirement that they provide a full complement of a long list of health benefits, ranging from mental health and substance abuse treatment, to maternity care and ambulance rides. This represented a body blow to the Affordable Care Act (ACA) and was viewed as another avenue for the Administration to undermine Obamacare, which it had failed to repeal in Congress. As soon as the AHPs final rules were issued in June of last year, Democrat attorneys general of 11 states filed suit to overturn them, accusing the Administration of overreaching its authority. On March 28, a judge in the U.S. District Court for the District of Columbia agreed with them and struck down those portions of the rules that he found had violated the ACA. That doesn’t mean new rules allowing AHPs are completely dead—just those portions that would have made them most attractive to small employers. Long before Trump’s election, federal law had allowed AHPs to exist in much more limited forms, and they are allowed under the Employee Retirement Income Security Act of 1974 (ERISA). In striking down the new rules, Judge John Bates held that DOL had unreasonably interpreted ERISA and moved beyond its focus on employer benefit plans, stretching it instead to cover commercial insurance transactions between unrelated parties. He minced no words in describing the rules as “clearly an end-run around” the Obamacare law by the Administration. He also found that DOL’s interpretations ERISA were contrary to the law’s text and purpose. The rules provided no meaningful limit on what associations needed to demonstrate to qualify as “employers” under ERISA, Bates pointed out. They also failed to show why geographic proximity was connected to common employer interest essential for coverage under ERISA, he added. Coverage Called Absurd In addition, the rules did not require members of associations to be sufficiently aligned, and allowed owners without any employees to “absurdly” count themselves as both employers and employees in order to suggest an employment relationship justifying coverage under ERISA, Bates declared. He also remanded the rules to DOL to determine whether they can be saved after the invalidated provisions are excised. It also is quite possible that the Trump Administration will choose to appeal the judge’s decision. The day after the decision, a Justice Department spokeswoman emphasized that the Administration disagrees with the ruling and is “considering all available options.” She added, “The Administration will continue to fight for sole proprietors and small businesses so that they can have the freedom to band together to obtain more affordable, quality healthcare coverage. The AHP rule opened healthcare options for dozens of associations representing thousands of small businesses and sole proprietors and provided them with access to the same type of affordable healthcare options offered by other employers.” Reacting to the victory, New York Attorney General Letitia James said, “We are pleased that the District Court saw past the Trump administration’s transparent effort to sabotage our healthcare system and gut these critical consumer protections in the service of its partisan agenda.” In a victory Tweet, California Attorney General Xavier Becerra wrote, “The rule of law prevailed yet again against the Trump Administration—today in the name of preventing employers from getting a free pass to offer barebones #healthcare coverage. Proud to stand with the states that fought for this.” To the extent that Judge Bates’ decision is not reversed on appeal, it will replace the current restrictions on establishing AHPs under ERISA with new ones, explain Joy Sellstrom, Sam Schwartz-Fenwick and Thomas Horan, attorneys with law firm Seyfarth Shaw. It is expected to impact only a small segment of employers because there was relatively little growth in AHPs following DOL’s final rules. It appears that only some insurers were interested in providing products to support the plans, which in many cases also were subject to burdensome state regulations. According to one report, most health insurers instead have been focusing on expanding their Medicare supplemental coverage. “Nonetheless, this decision is significant as it reflects that nearly a decade after the passage of the ACA, the battle over what—if any—provisions of the law are lawful continues unabated,” observe the Seyfarth Shaw attorneys. Let's block ads! (Why?)

MSHA Tests Citation Negotiating Program

The Mine Safety and Health Administration (MSHA) is in the process of conducting a three-month test to see if it can reach final resolutions of citations with mine operators at the informal health and safety conference stage. The test, ending June 30, is being conducted in two districts: Coal Region 3 and the Metal/Nonmetal Southeast District. Under the pilot project, MSHA will not make any modifications to citations unless operators sign binding agreements at the end of negotiations, in which they accept the modifications offered and relinquish all rights to further contest the citations before the Federal Mine Safety and Health Review Commission (FMSHRC). During the conference, the operator and MSHA would negotiate both paper changes and penalty amounts for all citations that are among the subjects of the conference. If a resolution is reached, both parties would sign an agreement indicating the terms of the settlement along with the operator’s agreement not to contest the citations or assessments. “MSHA long has been concerned that operators can obtain modifications to citations in conferences and then go on to contest the modified citations and seek further changes in cases before the commission,” explains attorney Margaret S. Lopez of law firm Ogletree Deakins. “With this pilot project, the agency intends to commit operators to results achieved via conference and thereby reduce the number of cases to be contested.” She also notes that while MSHA sometimes offers to make changes during conferences, in many circumstances significant issues remain that need to be addressed through the contest process. “Such issues can seriously impact ongoing abatement and future enforcement if they are not resolved,” Lopez says. “If MSHA is willing to make good-faith settlement offers in the conference process that will address all such issues, then the settlement program offered through this pilot project may well prove helpful to operators seeking early resolutions.” The pilot program has just started, and it is too early to tell whether it will be a worthwhile process for operators, she admits. However, based on what is known about the pilot program so far, Lopez suggests that mine operators may want to consider certain points. What to Ask For In the conference request, an operator may want to consider asking MSHA to provide a copy of the agency’s inspection file so that it can be reviewed before the conference is held, she says. “If necessary, the file may be requested under the Freedom of Information Act. There is almost always valuable information in inspectors’ notes and photographs.” Involving counsel in conferences also can help operators evaluate the merits of the agency’s final offers, Lopez recommends, adding that careful thought also should be given to whether to include nonadmissions language in any settlement agreement. Any citation or order that could trigger a special investigation is potentially problematic unless MSHA includes in the settlement agreement a commitment not to issue any associated penalties, Lopez warns. “MSHA intends for the pilot project to be used only to conference citations that are subject to regular penalty assessments,” she points out. “This system should reduce the risk of special investigation, but in instances in which citations allege high negligence or reckless disregard, it may make sense to request such a commitment.” In addition, Lopez stresses, “What is said in a conference may be used as evidence at a hearing if the operator decides not to accept the conference results.” For this reason, attorneys at law firm Fisher Phillips say that when participating in a conference, operators should take care to advise MSHA that anything stated or written during the conference is for settlement purposes only and cannot be used in future contest proceedings if a settlement is not reached. Whether operators can even obtain a conference has long been a source of frustration because under the law MSHA has the “sole discretion” whether or not a conference is even granted, the Fisher Phillips attorneys note. “It would seem, however, that if the pilot program is going to work, MSHA would be more inclined to grant conference requests.” It is unclear from MSHA’s announcement when it would expand the program if the pilot turns out to be successful, but that appears to be the direction in which the agency is heading. Let's block ads! (Why?)

Making Roads Safe from Marijuana-Impaired Drivers

A new study urges state and federal governments to take stronger actions to improve the ability of law enforcement to seeks to identify and deter the growing danger of marijuana-impaired driving. A study of our current state of knowledge about the topic was recently published by the American Transportation Research Institute (ATRI), the nonprofit research arm of American Trucking Associations. The growing trend of more states choosing to allow both the medical and recreational use of the drug has not been accompanied by advances in methods for effectively addressing marijuana-impaired driving. As a result, this topic is a top-of-mind concern for many truckers, the institute notes. In fact, last year the subject was identified as a top safety research priority by ATRI’s Research Advisory Committee (RAC), made up of industry safety experts. “While increased access to marijuana has not directly impacted the trucking industry in terms of truck drivers testing positive for marijuana, the increased frequency of marijuana-positive drivers operating on the same roadways as trucks makes marijuana-impaired driving a critical safety issue for the trucking industry,” ATRI’s report points out. Mike Card, president of Combined Transport Inc., agrees. “It is extremely concerning to motor carriers and our drivers that recreational marijuana is legal in so many states, yet as the ATRI report documents, a valid and widely accepted breathalyzer-type test is not available to law enforcement. ATRI’s study clearly defines a role for federal and state leaders to support law enforcement and others in keeping the roadways safe from those who choose to drive high.” In particular, the report highlights the importance of training law enforcement in how to identify and collect evidence of marijuana-impaired driving, particularly through the development of more well-trained drug recognition experts (DREs). “As ATRI’s research identifies, a key tool for combating drugged drivers is deploying additional drug recognition experts,” says Mark Savage, deputy chief of the Colorado State Patrol. “A DRE can bring critical evidence to prosecutors that other tests simply cannot measure.” Test Methods Inadequate Although drunk driving can be prosecuted using accurate testing tools, widely-tested and accepted tools and methods are not currently available for marijuana impairment testing, according to the researchers. “As a result, truck drivers in many states now face the significant risk of having legal marijuana users drive impaired (and illegally) alongside their trucks.” When it comes to alcohol and driving, in recent decades tightened laws and development of accurate testing technology aimed at combatting driving under the influence (DUI) are credited with contributing to an approximately 50% decrease in annual alcohol-related traffic deaths currently versus the 1980s. Several states that have approved medical or recreational marijuana use also have codified legal protections that prevent employers from taking adverse action against employees for their use of the drug anywhere except when at work. Of course, it is well established that even the most generous of the state marijuana legalization laws do not protect workers in professions where it is banned for safety reasons, such as commercial drivers, train operators and pilots. Because marijuana is processed by the body differently than alcohol, existing drug testing mechanisms can easily identify past marijuana use by measuring metabolites, but they cannot measure a current state of intoxication. Although not generally indicative of current state of intoxication, a positive test for past marijuana use can allow for employee termination by many employers, particularly those with strict anti-drug policies or those who employ safety-sensitive transportation workers. Thus, a simple blood or breathalyzer test—commonly employed by law enforcement when alcohol impairment is suspected—is not ideal for identifying drivers operating under the influence of marijuana. This is due to the body’s mechanisms for processing marijuana’s intoxicant agent, THC. Of the states that have legalized recreational marijuana, most have set limits on the amount of acceptable THC in blood tests when testing for driver impairment. However, there are several issues related to such tests. Some state laws allow a DUI charge if following an arrest the driver tests positive for THC derivatives in urine, which indicates marijuana use in the previous 30 days but not necessarily recent marijuana use. Testing Driver Behavior Identifying, documenting and prosecuting marijuana-impaired drivers depends on each state’s laws, but can be achieved through: observation and documentation of behavior; physical evidence; and drug testing in states where there are THC limits or zero tolerance laws. Police officers are extensively trained in how to identify impaired driving while observing how a vehicle is being operated, or after an accident on how the driver is behaving. In most cases the officer first conducts a standard field sobriety test (SFST), which involves asking the driver to stand on one leg, walk and turn, and moving an object like a pen or light in front of the driver’s face to see if their eyes jerk. The Advanced Roadside Impaired Driving Enforcement (ARIDE) program, developed by the National Highway Traffic Safety Administration (NHTSA) and the International Association of Chiefs of Police (IACP), seeks to bridge the gap between SFST and Drug Recognition Expert (DRE) evaluations of impairment. However, only 17 states have more than 20% of officers trained in ARIDE. DRE’s are specially trained law enforcement officers certified in recognizing and assessing individuals who are under the influence of drugs and alcohol. DREs are a key method that many states, Canada and the European Union use to determine marijuana impairment. DRE impairment determinations are supported by drug tests, which include oral or saliva swabs, urine testing and blood sample testing. In 2017, there were 8,606 DREs operating in the U.S. who conducted a total of 30,989 enforcement examinations, the researchers found. Marijuana was the most frequently identified substance in these examinations. The ATRI study also recommends that a number of other steps be taken to deal with the growing problem. These include increased data collection on the frequency and impacts of marijuana-impaired driving; public education and information be widely disseminated concerning the risks of impaired driving; better equipping law enforcement and the court system to intercept and ultimately prosecute impaired drivers; and targeting tax revenue generated from marijuana sales to fund these activities. “Educating the public on the dangers of marijuana-impaired driving, and of the legal consequences, is critical to preventing drugged driving,” the ATRI researchers stress. “Marijuana users—particularly younger users—do not perceive marijuana as having an impact on driving safety, and in a smaller number of cases, they may believe that marijuana improves driving safety. These beliefs are in direct contrast to the documented effects that marijuana has on driving-critical cognitive functions.” Let's block ads! (Why?)

Proper Fit for PPE Not Just for Space Walks

A high-profile snafu in space has brought new focus on personal protective equipment (PPE) and the obligation of employers to make sure that it fits all the members of an increasingly diverse workforce who are expected to wear it. This was brought home most vividly in late March when NASA was forced to cancel the first-ever space walk by two women at the International Space Station because only one of the appropriate space suits on board would properly fit a woman. Astronauts Anne McClain and Christina Koch had been slated to make the historic walk together in space, but Koch had to pair off with male astronaut Nick Hague and the chance for the two women to make history was lost. Hague and McClain also had completed a spacewalk earlier in March, but that was not enough to blunt some of the public accusations that McLain had been cut from the later spacewalk because she is a lesbian. According to NASA, the astronauts trained with various sized spacesuits, but the effect of microgravity changed the sizing preferences once in space. An ill-fitting spacesuit would make the job more difficult, and also, as you might well imagine, could present safety concerns. NASA spokeswoman Stephanie Schierholz explained that spacesuits come in different sizes and configurations. “Working in a pressurized spacesuit requires physical strength and endurance, and it is essential that the spacesuit fits as well as possible,” she revealed. “An optimally fitted spacesuit improves an astronaut’s ability to accomplish the tasks.” She explained, “We do our best to anticipate the spacesuit sizes that each astronaut will need, based on the spacesuit size they wore in training on the ground, and in some cases astronauts train in multiple sizes. However, the sizing needs of crew members may change when they are in orbit, in response to the changes living in microgravity can bring about in a body.” That did nothing to blunt the criticism. Even former Secretary of State Hillary Clinton tweeted, “Make another suit,” which failed to recognize the difficulty of making modifications to the suit in the space station without taking needed time away from other essential missions assigned to the crew. Other outraged critics also seemed to be unaware of some of the subtleties and complexities inherent in such a highly technical and complex operating environment. McClain, who is a lieutenant colonel in the U.S. Army and a decorated combat pilot and engineer, said it was her decision not to participate in the spacewalk. “This decision was based on my recommendation,” she declared. “Leaders must make tough calls, and I am fortunate to work with a team who trusts my judgement.” Down Here on Earth No sooner did the space station incident hit newspaper headlines and network news than social media erupted with the anger of many women who said they had faced similar issues they felt amounted to discrimination against women employees by ignorant or deliberately callous employers. They cited incidents when equipment was so ill-fitting that it created dangers or simply made it extremely difficult to accomplish the tasks expected of them. The ill-fitting equipment and clothing they described included bullet-proof vests, oversized work boots, hazmat suits, gloves and PPE equipment at construction sites—all designed to be worn only by an average-sized man. Adding to their anger was the fact that some employers regarded different-sized equipment for women as something that was not their responsibility and that in many cases the woman was expected to purchase it herself. Your business may not operate in outer space, but under federal law employers are required to consider these issues when determining required PPE for their workplaces, and must make sure that the PPE properly fits the employee to ensure it provides the intended protection, says attorney Todd Logsdon of law firm Fisher Phillips. “A diverse workforce can include employees of various sizes,” he adds. “An employer must not only ensure it has the proper PPE for the hazards of the workplace, but also that the PPE fits each of the employees who may need to use it.” This individual employer responsibility is recognized and written into federal workplace safety law and regulations, Logsdon points out. To begin with, employers are required to conduct an assessment of the workplace to determine what hazards are present that necessitate the use of PPE. Then the employer must select the appropriate PPE to address the hazards, communicate that decision to the affected employees, and “select PPE that properly fits each affected employee,” federal regulations state. Logsdon notes, “The reasons for having properly-sized PPE are obvious. Gloves that are too big may make it difficult for employees to grip or manipulate tools; chemical boots that are too big could create a trip hazard, and respirators that are too big will not have the proper seal to prevent contaminants from entering the facemask.” Employers also should keep in mind that the employer is required to train the affected employees on when PPE is necessary, how to don, doff, adjust and wear the PPE, the limitations of the PPE, as well as the proper care and maintenance of the PPE, Logsdon warns. In general, employers must provide the required PPE at no cost to the employee with a few exceptions. For example, the employer is not required to pay for general, non-specialty safety footwear and prescription eyewear that the employer allows workers to wear off-site. Finally, the employer must remember to document and “certify” the hazard assessment, Logsdon stresses. Not doing so has proven costly for many employers. “Failing to be able to produce the certified hazard assessment is a common citation by OSHA.” Let's block ads! (Why?)

Even if an Injury Report Is Wrong, Expect an OSHA Inspection

The Occupational Safety and Health Administration (OSHA) doesn’t often do mulligans. Even if an employer later discovers that it filed an injury report by mistake, they shouldn’t expect the agency to cancel a follow-up onsite inspection. “It is our experience that once the horse is out of the barn—that an accident has occurred, regardless of severity—OSHA is unlikely to agree not to inspect the workplace,” say attorneys David Klass and Travis W. Vance of law firm Fisher Phillips “That is because, while the severity of the injury may affect how a citation is classified (serious, other-than-serious, etc.), whether a violation may exist is based on the fact of injury itself as well as what else the company has reported to OSHA regarding the cause of the injury.” They cite the example of news of an injury making its way up the chain of command to the safety director, who has been erroneously informed that an employee’s finger was amputated. In trying to adhere to the 24-hour deadline required for filing a report of an amputation with OSHA, the director sends the report, only to learn hours or days later that there was no amputation. An OSHA inspector then shows up demanding to inspect the worksite. Can you stop the inspection? Probably not, according to Klass and Vance. Under OSHA regulations, when a fatality occurs, the company must report the fatality to OSHA within eight hours of becoming aware of the fatality. When an employee suffers an amputation or a loss of an eye, or is admitted to in-patient hospitalization, the employer must report the injury to OSHA within 24 hours of becoming aware that the injury is reportable. In order to report such a serious injury, a company can either call OSHA or report the injury on the agency’s website. Under federal law, OSHA is authorized to conduct two types of workplace inspections. First, OSHA can conduct a programmed inspection following a general administrative plan based on neutral criteria. Second, it can conduct an unprogrammed inspection any time it believes there is specific evidence of a possible existing violation. However, courts have held that OSHA must be able to show it has reasonable grounds for believing that a safety and health hazard may exist, or that there exists an imminent danger of death or serious injury. A serious injury report supplies those grounds. OSHA’s Judgment Call OSHA does not investigate all reportable injuries. It makes a judgment based upon the information reported to determine whether a violation of federal safety law may exist and an inspection is warranted. “If an OSHA inspector shows up at your worksite after reporting an injury, OSHA has decided it has reasonable grounds to believe a violation may exist,” Klass and Vance point out. As a result, they say, if a company knows at the time the OSHA inspector shows up that the initial report of injury was incorrect—and that the employee did not receive an amputation or was not admitted to a hospital as an in-patient, for example—it will still be very difficult to prevent OSHA from conducting an inspection to investigate the cause of the injury. The best defense is to take timely precautions before the chain of events begins to unspool. Companies should take precautionary steps to prevent erroneous reports from occurring in the first place, the lawyers urge. Remember that companies have 24 hours from the time they know that the injury is reportable to file their report with OSHA. As a result, the clock does not begin to run once the injury occurs, but only once the employer knows that it is reportable. “Companies should take the time to confirm the nature of the injury before trying to report the injury hastily to OSHA,” Klass and Vance recommend. “If a company patiently waits to have the status of the injury confirmed before reporting the event to OSHA, chances are good the report will be accurate.” They also stress the importance of employers calling their legal counsel once a potentially reportable injury has occurred. “Experienced legal counsel can guide companies through the process of reporting to OSHA and ensure that the report, if necessary and is done in a way to minimize the chances of an inspection,” they say. As was explained earlier, OSHA does not investigate every report of injury but will make its determination based on what is said in the report regarding the injury’s cause and circumstances, Klass and Vance note. “Experienced legal counsel can assist companies regarding what information is reported to OSHA.” Let's block ads! (Why?)

One in Seven Employees Don’t Feel Safe at Work

With workplace violence on the rise, one out of seven employees don’t feel safe at work, and neither they nor human resources personnel know how to respond if an incident occurs, according to recent research conducted by the Society for Human Resource Management. Nearly half of HR professionals say their organization had at some point experienced a workplace violence incident at some level—up from 36% in 2012. Of those who reported having experienced workplace violence, more than half said their organization had experienced an incident in the last year. “Companies and HR should and must do more to make employees feel safe at work,” says SHRM president Johnny C. Taylor, Jr. “This data shows we have a lot of work to do in terms of security, prevention, training and response.” Just last February, after being informed that he was being terminated, an employee opened fire at an Aurora, Ill., warehouse facility operated by manufacturer Henry Pratt Co., leaving five people dead, including an HR manager, and several police officers injured. That made national news, as did other fatal workplace shootings that took place at a newspaper in Annapolis, Md., and the Navy Yard in Washington, D.C. Although not workplace-related, the recent horrific killings at two mosques in New Zealand are bound to have ratcheted up some workers’ anxiety levels. Unfortunately, when it comes to workplace violence in this country, SHRM finds that nearly one-third of U.S. employees and nearly one out of five HR professionals are currently unsure or don’t know what to do if they witness or are involved in a workplace violence incident. “The goal for employers is making your workplace a ‘difficult’ target for violent offenders and being prepared to react quickly,” Taylor explains. “If you make the investment in security and preparation, your employees will feel safer and respect you for valuing their safety.” Although a majority of HR professionals say their organizations already provide training to employees on how to respond to an act of workplace violence, more than one-third do not provide such training to employees. While almost all say their company has a process for identifying employees with a history of violence, over half are unsure whether they have a workplace violence prevention program. Of those responding to the survey, 48% say their organizations have experienced an incident of workplace violence at some point, up from the 36% who reported this during a similar survey that was conducted in 2012. Although those surveyed this year were not asked to speculate on differences, SHRM notes that a possible explanation for the rise in reported incidents may be due to changing attitudes towards workplace behavior. “With the rise of the #MeToo movement, as well as organizations’ growing focus on inclusivity, it is likely that in the last seven years, HR professionals have come to view more types of behavior as problematic and indicative of future workplace violence,” SHRM adds. Less Zero Tolerance The research also found that the kind of reaction to workplace violence often varies depending on specific aspects of the incident. Zero tolerance policies seem to be losing favor among organizations, with many opting to consider each incident in context, this year’s research finds. In 2012, 47% said their company had a policy of zero tolerance while only 39% in this year’s survey say their organization has zero tolerance for workplace violence and would immediately terminate the employee. Of those polled, 72% said their organization’s response to an incident would depend on the specific circumstances, compared to 61% in 2012. “Overall, 71% of workers say their workplace is safe. But those who are employed by organizations with programs to deal with workplace violence feel slightly more secure,” SHRM notes. In addition, 86% of employees who are unaware of any past incidents of workplace violence at their company say they feel very safe or safe. In comparison, 64% of those who say there has been an instance of workplace violence at their organization within the past year say they feel secure. According to SHRM’s research, workers understandably feel more safe when their employers provide prevention and training response programs. Another important benefit is that more employees know how to react to an incident when their employers already have workplace violence prevention and employee response training programs in place. “Education has to start from the top down, and often that starts with HR,” Taylor stresses. “There’s naturally a lot of fear when people think of workplace violence. But preparing and providing employees with hands-on training helps empower them to react and take action in the event of a worst-case scenario.” Of the more than 2,000 who responded to the SHRM research—which included separate surveys of both HR managers and line employees conducted in late February—90% of the HR professionals say their organizations have processes for identifying potential or current employees with a history of violence, mainly through background checks and employment or personal reference checks. While this type of screening is common, according to both surveys, organizations are less likely to have programs to prevent workplace violence or train workers on how to respond to such incidents. Although most workers consider themselves capable of dealing with workplace violence, 30% of employees and 19% of HR professionals say they feel ill-equipped to deal with violence in the workplace. SHRM recently introduced an online toolkit called Understanding Workplace Violence Prevention and Response, containing information and resources for addressing workplace violence. Available to members of SHRM, the kit includes instructions on how to create a prevention plan; define and identify workplace violence; recognize warning signs; create a response team; and respond to a workplace violence incident. Let's block ads! (Why?)

EPA Proposes Comprehensive Plan to Address PFAS

A large-scale federal plan to address the regulatory issues surrounding Per- and Polyfluoroalkyl Substances (PFAS) has drawn both praise and criticism in nearly equal measure. The Environmental Protection Agency (EPA) announced its PFAS Action Plan earlier this month in the face of accusations that it had done little previously to stem release of the chemicals into the environment. So far, the issue has been addressed largely through a combination of state actions and civil litigation. “The PFAS Action Plan is the most comprehensive cross-agency plan to address an emerging chemical of concern ever undertaken by EPA,” said Andrew Wheeler, EPA acting administrator. “For the first time in EPA history, we utilized all of our program offices to construct an all-encompassing plan to help states and local communities address PFAS and protect our nation’s drinking water.” The PFAS family of toxic chemicals are believed to cause certain kinds of cancer. Initially believed to be non-toxic, they have been used in a broad range of products until recent years, when manufacturers withdrew them from production in the United States. Among the most widespread uses were in the manufacture of Teflon coatings, firefighting foam, waterproofing clothing, carpet treatments, and popcorn and pizza boxes. Although imports are essentially unregulated and remain an ongoing concern. PFAS also are found throughout the country in drinking water as the result of manufacturing process discharges. EPA said it has identified several industries that are likely to be discharging PFAS in their wastewater and will begin a more detailed study to evaluate the potential for PFAS presence in these wastewater discharges. As part of this study, EPA plans to gather more detailed information for the following point-source categories: organic chemicals, plastics, synthetic fibers, pulp and paper, textiles and airports. The EPA plan includes steps that the agency already had announced in May 2018, along with certain other short-term solutions (defined as taking less than two years) and long-term strategies (defined as taking two years or longer). Announced last year were initiation of steps to evaluate the need for a maximum contaminant level (MCL) for perfluorooctanoic acid (PFOA) and perfluorooctane sulfonate (PFOS); beginning the necessary steps to propose designating PFOA and PFOS as “hazardous substances” through one of the available federal statutory mechanisms; developing groundwater cleanup recommendations for PFOA and PFOS at contaminated sites; and developing toxicity values or oral reference doses (RfDs) for GenX chemicals and perfluorobutane sulfonic acid (PFBS). New short-term steps announced by EPA are developing new analytical methods and tools for understanding and managing PFAS risk; promulgating Significant New Use Rules (SNURs) that require EPA notification before chemicals are used in new ways that may create human health and ecological concerns; and using enforcement actions to help manage PFAS risk, where found to be appropriate. Long-term regulatory and research approaches EPA said it will pursue include reducing exposures and seeking better understanding of the potential human health and environmental risks associated with PFAS. It added that some long-term actions may result in intermediate steps and products that can help to reduce PFAS exposures and protect public health. “Ecological risks are of great concern to many stakeholders due to the widespread distribution and persistence of PFAS in the environment and the wide variety of PFAS chemicals for which environmental fate and transport is currently uncharacterized,” the agency said. “While this Action Plan focuses mainly on human health, characterizing potential ecological impacts and risks are important areas of work for the EPA.” Among the other federal agencies EPA intends to work with are the National Institute of Environmental Health Sciences National Toxicology Program, the Food and Drug Administration, U.S. Department of Agriculture and Department of Defense. To support states in managing their water quality, EPA says it will evaluate development of ambient water quality criteria. Based on the very limited amount of data available, EPA points out that it has identified several industries likely to be discharging PFAS in their wastewater and will begin a more detailed study of the potential for PFAS presence in their discharges. As part of this study, the EPA said it plans to gather more detailed information for the point-source categories including organic chemicals, plastics, synthetic fibers, pulp and paper, textiles and airports. The chemical industry likes the new plan. The American Chemistry Council (ACC) said it supports inclusion of initiatives that can be implemented quickly that are based on the best-available science. “It is also essential that EPA communicate effectively to the public to build confidence, transparency and credibility in the actions it is taking,” ACC stressed. “A science-based management plan will help states by providing access to a broader range of resources; ensuring uniform standards across the country to enable straightforward compliance; and minimizing the burden on states that are already short on resources.” Not so happy are state agencies and environmental advocacy groups. New Jersey’s Department of Environmental Protection accused the EPA of “leaving millions of Americans exposed to harmful chemicals for too long by choosing a drawn-out process.” EPA countered: “This is not a delay. This process will provide regulatory certainty, while ensuring the legal defensibility of EPA’s regulatory actions,” adding that it expects to issue a proposed regulatory determination by the end of the year. “This is an action plan with no action,” declared Suzanne Novak, an attorney for Earthjustice. She described the announced plan as “a long list of initiating steps that EPA should have been doing for the past few years, but no concrete actions. Meanwhile, PFAS are linked to chronic health issues, even death, and are highly unregulated despite a national emergency affecting entire towns.” The National Resource Defense Council (NRDC) asserted: “The EPA just kicked the can down the road again,” adding that the plan “pushes enforceable standards, if they come at all, five to 10 years down the line.” Erik Olson, senior director for Health & Food at NRDC, offered, “While the agency fumbles with this ‘mis-management plan,’ millions of people will be exposed to highly toxic PFAS from drinking contaminated water.”

Surprises Lurk in Manufacturers’ EHS Legal Forecast

Legal and regulatory challenges, some of them barely on manufacturers’ radar, are headed straight at those industry professionals and executives responsible for grappling with environmental, health and safety (EHS) issues at their companies. Some of these developments were discussed recently by Megan E. Baroni an attorney specializing in EHS legal practice at the law firm of Robinson & Cole. Here is a quick rundown of her observations. When it comes to emerging contaminants responsible for raising regulatory concern and sparking new litigation, if you haven’t heard of per- and polyfluoroalkyl substances (PFAS), you will, according to Baroni. PFAS covers a group of man-made chemicals used for decades in all kinds of products, including firefighting foam, aerospace products, building materials and outdoor apparel, among others. When they are present, PFAS persist in the environment and in the human body, and preliminary evidence suggests that PFAS can lead to a variety of adverse health effects. Although the Environmental Protection Agency (EPA) has generated health advisories for certain PFAS compounds, these advisories are not enforceable. Instead, a number of states have been busy developing their own regulatory standards. Some states also are requiring that manufacturers investigate for PFAS compounds at regulated sites, even if there is no evidence that PFAS compounds were used or released at the site. “And, as most people will tell you, if you test for PFAS, you usually find it,” Baroni points out. PFAS detections are already the subject of lawsuits, and more cases are expected to be filed over the coming year. She notes that so far, the primary targets of these suits have been PFAS manufacturers, but the cast of defendants could soon expand to include manufacturers of products that contain PFAS, landfill operators and property owners, among others. “PFAS are also becoming a hot due-diligence topic, with increased attention and investigation focused on them in corporate and real estate deals,” Baroni says. “In short, these emerging contaminants will really hit the scene in 2019.” Defining Water & Toxic Dangers At the end of 2018, the Trump administration proposed a rule intended to redefine “waters of the United States,” which is the term the government uses to determine the scope of the federal Clean Water Act. The scope of this act creates known impacts on a wide variety of manufacturing activities, ranging from process discharges to site development. As expected, the proposed rule scales back what qualifies as a water of the United States. If the Trump EPA rule is finalized, Clean Water Act jurisdiction would not be extended to most roadside ditches, ephemeral streams or wetlands that do not have a surface water connection to another body of water that falls under the act. “This definition would provide clarity for manufacturers grappling with the current reach of the Clean Water Act,” Baroni observes. “However, it will no doubt be subject to intense public comment and litigation from environmental groups that are looking to avoid any actual or perceived jurisdictional rollback.” Toxic Substances Control Act (TSCA) reform is another EPA priority that is expected to gain importance. Baroni says that with the appointment of Alexandra Dapolito Dunn as chief of the Office of Chemical Safety and Pollution Prevention, EPA is poised to continue rolling out its draft risk evaluations for the 10 substances that it identified and prioritized as toxic and carcinogenic in July 2017. She believes these risk evaluations will likely be closely scrutinized by both regulated industries and environmental groups for a number of reasons. These include the conditions of use evaluated by EPA, the thoroughness of the risks identified, and, potentially, the public nature of the scientific studies addressing potential risks. “Manufacturers may want to keep an eye towards the TSCA reform process in 2019 to ensure that they have adequate input into this risk evaluation process,” Baroni warns. When it comes to the Occupational Safety and Health Administration (OSHA), that agency earlier informed Congress that it plans to conduct about 1,500 fewer investigations in Fiscal Year 2019, seeking to achieve a target total of 30,840 workplace inspections. Now that the agency has the electronic illness and injury reporting rule controversy largely behind it—although it continues to deal with litigation challenging those changes—OSHA can fully focus on its compliance and enforcement responsibilities. While the overall number of inspections might be down, OSHA will emphasize the need for detailed, in-depth inspections in 2019, Baroni says. OSHA intends to focus its inspection efforts on the highest-risk workplaces, conducting complex inspections that will aim at creating the biggest possible safety impact. Employers will find that the agency has embraced new technology to make its thinning resources stretch even further, including the use of drones to inspect large facilities.  OSHA also has revealed plans to balance the use of compliance assistance programs with enforcement tools which the agency says will ensure that “mission-critical field activities are given equal measure when compared to enforcement activity.”