Author Archives: David Sparkman

OSHA Has Answers for Silica Rule FAQs

Ever since the U.S. Occupational Health and Safety Administration (OSHA) began enforcing its respirable crystalline silica standard for general industry in June 2018, employers have had questions about it. On Jan. 23, OSHA published a list of Frequently Asked Questions (FAQs) and answers developed in consultation with industry and union stakeholders. “The FAQs provide important interpretations of several of the provisions in the rule and provide employers with additional flexibility for compliance,” observes attorney Bradford T. Hammock of the law firm of Littler Mendelson, who provided a summary of some of the most important questions and answers provided by OSHA. The silica standard establishes a permissible exposure limit (PEL) of 50 μg/m3 as an eight-hour time-weighted average (TWA), and an action level of 25 μg/m3, calculated as an eight-hour TWA. Employers must ensure that employees are not exposed to respirable crystalline silica (RCS) above the PEL. Employers must perform exposure assessments of each employee who is or may reasonably be expected to be exposed to RCS at or above the action level, and provide medical surveillance for employees who are exposed to RCS at or above the action level for 30 or more days per year. Employers also must establish regulated areas and provide respiratory protection, housekeeping, training, hazard communication and medical surveillance. The silica standard does not apply to agricultural operators, exposures that result from the processing of sorptive clays, or construction work. OSHA published separate FAQs for the construction industry in August 2018. The standard also does not apply to employers who have objective data demonstrating that employee exposure will remain below the action level under foreseeable conditions, Hammock points out. OSHA considers the failure of most controls to be a foreseeable condition and thus employers should consider this when making their assessments. However, OSHA states that failure of some types of controls (e.g., substitution of non-silica-containing materials, fixed walls) is not possible or so improbable that it is not a foreseeable condition, and therefore employers need not account for the potential failure of such controls when determining coverage. In determining whether the standard applies, employers also don’t need to disable, remove or otherwise account for the potential failure of measures that may contribute in a limited way to reducing silica exposures but which are not adopted for that specific purpose, such as general building ventilation or HVAC systems. Clarifying Exposure Prevention Employers must ensure no employee is exposed to an airborne concentration of silica in excess of the PEL. Employers must assess the exposure of each employee who is exposed to respirable crystalline silica at or above the Action Level (AL) using either a performance option or a scheduled monitoring option. This includes the option of switching from the scheduled monitoring option to the performance option, and can make use of air monitoring data generated during scheduled monitoring to fulfill the performance option assessment requirements. The term “objective data” means information demonstrating employee exposure to silica associated with a particular product or material or a specific process, task or activity. Data that may qualify include industry-wide surveys; information from equipment manufacturers or trade associations; exposure mapping; calculations based on substance composition or chemical and physical properties; and historical air monitoring data. Employers don’t have to sample every employee if using the scheduled monitoring option. Where several employees perform the same tasks on the same shift and in the same work area, employers may sample a representative fraction of these employees, OSHA says. Although employers are not banned from requiring employees to wear personal samplers as a condition of employment under the standard, other laws, regulations or collective bargaining agreements may apply. Employers must demarcate regulated areas from the rest of the workplace and post signs with a specified legend at all entrances to those areas. Access to regulated areas must be limited and require the use of a respirator for each person who enters it. A regulated area does not need to be demarcated if the employer enforces work rules limiting employees’ time in it so there is no reasonable expectation that their eight-hour TWA exposures will exceed the PEL. When it comes to intermittent activity, employers don’t have to create a regulated area on days when employee exposures are not reasonably expected to exceed the PEL. In such cases, OSHA says employers may demarcate the regulated area on just a temporary basis. Administrative controls are an acceptable means of reducing employee exposures. An employer could reduce an employee’s exposures by scheduling high-exposure tasks to be conducted when that employee is not working in an adjacent area. Rotation of employees to limit employee exposures also is not prohibited. Tasks that are not covered by the standard—such as when the employer has objective data demonstrating that employee exposures will remain below the AL—do not need to be included in the written exposure control plan required under the standard. Employers also are allowed to develop a single comprehensive plan for each worksite that includes all of the silica-generating tasks that employees will perform at the worksite. In other words, they don’t need separate exposure control plans for different operations. If an employer has objective data demonstrating that employee exposure will remain below the AL under any foreseeable conditions, the prohibition on dry sweeping, dry brushing and the use of compressed air for cleaning clothing and surfaces does not apply. The standard does not require employers to demonstrate that wet methods, a HEPA-filtered vacuum, or other methods are impossible to use in order to establish “infeasibility,” OSHA notes. Infeasibility exceptions encompass situations where wet methods, HEPA-filtered vacuuming and other exposure-minimizing methods are not effective, would cause damage or would create a hazard in the workplace. This information, of course, represents just a portion of the clarifications offered by OSHA in its FAQs. Other topics covered include hazard communication, recordkeeping, temporary employees and more. The full silica FAQs are available on the agency’s website. Let's block ads! (Why?)

OSHA Lessens Reporting Obligation for Most Employers

The latest step in an ongoing regulatory saga, on Jan. 25, the Occupational Safety and Health Administration (OSHA) published its final rule reducing the negative impact of employer electronic injury and illness recordkeeping rules originally adopted by the Obama-era agency. The final rules eliminate the earlier requirement for employers to electronically submit Forms 300 and 301. The rule still requires employer establishments with 250 or more employees and with 20 to 249 employees in certain designated industries to electronically submit Form 300A annually. The deadline for employers to file their reports covering 2018 injury data is March 2. One of the major reasons OSHA cited for the change was the need to preserve worker privacy. Nothing in the final rules revokes an employer’s duty to maintain OSHA Forms 300 and 301 onsite for future OSHA inspection. Employers also were obligated to post the 300A illness and injury form in workplaces by Feb. 1. That form is not filed with the agency, but penalties can accrue if it is not posted in worksites until April 30, and a copy must be retained for five years. The agency had proposed making changes to the electronic reporting rules in July of last year. The Trump OSHA was responding to sweeping changes made in 2016 by the Obama-era agency, when it was proposed that OSHA 300 logs and 301 forms would be published on OSHA’s website, but with employee names and some of their other personal information redacted. However, employers objected that the public reports would include sensitive information about medical treatment, the nature of the injury or illness, a description of how the injury occurred and other personal data that would make it easy to identify the employee involved. In addition, the 2016 rule called for publishing employer information on the Internet for all to see consistent with agency’s policy at that time of using all opportunities for publicly “shaming” companies. Employers also viewed the Obama-era rules as a generous gift to union organizers and tort lawyers to help them locate additional targets in the private sector. The AFL–CIO and other unions were not happy with OSHA’s proposal to reverse the Obama-era changes and they asked the Administration to withdraw the newest version of the rules, which the Obama White House declined to do. It is expected that the unions will mount legal challenges against the new rules now that they have been finalized. The States and the Future Several states that operate their own OSHA programs delayed adopting the earlier electronic recordkeeping rules due to the uncertainty surrounding the changes. Federal OSHA told employers in these state plans to submit 300A data in spite of not being subject to the rule or federal OSHA’s jurisdiction. Last April, federal OSHA announced that employers in all state plan states must implement the electronic recordkeeping rules. By the end of 2018, only three states had failed to adopt the rules: Maryland, Washington and Wyoming. As usual, California is different. Last year the state legislature adopted a new state law requiring Cal/OSHA to monitor the federal rulemaking and its implementation of the electronic recordkeeping rule. If Cal/OSHA determines that OSHA has “eliminated” or “substantially diminished” the requirements for employers to submit injury and illness data, the state agency will evaluate how to go about implementing changes it believes are necessary to protect those goals. Another new California law seeks to undo an OSHA policy by changing the statute of limitations for citations or violations involving recordkeeping requirements from six months after a violation occurs to either the date that the violation was corrected or the date the injury is discovered. Some on the employer side of the issue don’t believe the new rules went far enough. Eric J. Conn and Daniel C. Deacon of the law firm of Conn Maciel Carey LLP argue that the scope of the change is much too small and fails to address most of industry’s concerns. “Remember that only workplaces with 250+ employees were ever going to have to submit 300 and 301 level data,” they note. “By eliminating that one requirement on that one subset of workplaces affects the tiniest percentage of workplaces. Every employer that was required to submit injury data yesterday, is still required to submit injury data now, and most employers that were covered by this rule will be submitting the exact same data they were already required to submit.” Conn and Deacon say OSHA should still add provisions to prevent the data that is collected from being published, or at least not published along with employer-identifying information, which is how OSHA’s sister Labor Department agency, the Bureau of Labor Statistics, has handled the injury data it has collected for decades. They also urge OSHA to modify the size threshold from workplaces with 25 employees to 100 employees, which would unburden the really small employers currently affected by this rule. Modifying the definition of “high hazard industry” that swept thousands of small employers into the rule should be changed as well, the attorneys say. “Right now, the threshold average Days Away Restricted or Transferred (DART) rate that makes an industry ‘high hazard’ and therefore covered by the data submission requirements is essentially exactly average. If OSHA recalibrates the definition of high hazard industry to where it has always been under the Site-Specific Targeting (SST) program, a great burden would be lifted from many small employers.” Because these and other changes were not included in the most recent rulemaking, court challenges mounted earlier that were halted to sllow for OSHA’s reconsideration of the rule will almost certainly be re-activated. This possibly could create an opportunity for the agency to address these issues in the future, Conn and. Deacon say. Let's block ads! (Why?)

OSHA Raises Employer Penalties for 2019

The penalties levied against employers for safety violations by the Occupational Safety and Health Administration (OSHA) have gone up, effective Jan. 24. The increases only apply to citations issued after that date and for the remainder of 2019. The 2019 penalties are: ·        Other than Serious violations, $13,260 (up from $12,675 in 2018); ·        Serious violations, $13,260 (up from $12,675); ·        Repeat violations: $132,598, (up from $126,749); ·        Willful violations, $132,598 (up from $126,749); ·        Failure to abate (per day), $13,260 (up from $12,675 last year). The penalty increasse apply to federal OSHA states. Nonetheless, OSHA expects that the 26 states operating their own occupational safety and health programs will align penalty structures with federal OSHA so that such programs are equally effective. “While this is OSHA’s expectation there has been little adjustment from various state plans to align with the increase in penalties,” notes Tressi L. Cordaro, an attorney with the law firm of Jackson Lewis PC. “For example, North Carolina and Kentucky still maintain a $7,000 maximum fine for serious violations and $70,000 for willful or repeats.” In the future, DOL is required to adjust maximum OSHA penalties for inflation by January 15 of each new year. Let's block ads! (Why?)

Are You Ready for the Feb. 1 OSHA Reporting Deadline?

The deadline for employers to prepare, certify and post a hard copy of their 300A annual summary of injuries and illnesses report in their workplaces for employees to see is Feb. 1—unless your business is excluded because you have fewer than 10 employees or are on a list of low-hazard industries, such as dental offices, advertising services and car dealers. These are hard copy reports meant to be posted in the workplace for employees to see. Employers in certain other industries must electronically file their reports for 2018 with the Occupational Safety and Health Administration (OSHA) no later than March 2. Also, keep in mind that because of an agreement reached between Congress and President Trump last September, OSHA and all other agencies operating under the umbrella of the Department of Labor continue to function under the partial government shutdown. The Form 300A is a summation of the workplace injuries and illnesses recorded on the OSHA 300 Log during the previous calendar year, as well as the total hours worked that year by all employees covered by the OSHA 300 Log. By Feb. 1 employers must review their OSHA 300 Logs, verify the entries on the 300 Log are complete and accurate, and correct any deficiencies discovered. The employer then must use the injury data from the 300 Log to calculate an annual summary of injuries and illnesses and complete the 300A Annual Summary Form, and certify the accuracy of the 300 Log and the 300A Summary Form. With the many changes made in the reporting process over recent years, employers need to avoid making some of the most common mistakes, according to attorneys Lindsay DiSalvo, Daniel Deacon and Eric Conn of the law firm of Conn Maciel Carey LLP. “We frequently see employers make mistakes related to this annual duty to prepare, post and certify the injury and illness recordkeeping summary.” Some regularly made mistakes include ● Not having a management representative with high enough status within the company “certify” the 300A. ● Not posting a 300A for years in which there were no recordable injuries. ● Not maintaining a copy of the certified version of the 300A form. ● Not updating prior years’ 300 Logs based on newly discovered information about previously unrecorded injuries or changes to injuries previously recorded. ● Confusing the requirement to Post a 300A in the workplace with the requirement to electronically submit 300A data to OSHA’s web portal. How to Do It Right “A common mistake employers make is to have a management representative sign the 300A Form who is not at a senior enough level in the company to constitute a ‘company executive,’” the lawyers note. This is defined as an owner of the company, a corporate officer, the highest-ranking company official working at the workplace, or the immediate supervisor of the highest-ranking company official at that location. After certifying the 300A, OSHA’s regulations require the certified copy of the 300A Summary Form be posted in the workplace for three months, through April 30. The attorneys point out that many employers fail to prepare or post a 300A Form in years when there were no recordable injuries or illnesses. “Even when there have been no recordable injuries, OSHA regulations still require employers to complete the 300A form, entering zeroes into each column total, and to post the 300A just the same,” warn the Conn Maciel Carey lawyers. After April 30, employers may take down the 300A Form, but must maintain for five years following the end of the prior calendar year at the facility covered by the form or at a central location, a copy of the underlying OSHA 300 Log, the certified 300A Annual Summary Form and any corresponding 301 Incident Report forms. Another common mistake made by employers is to keep only the electronic version of the 300A, and not the version that was printed, “certified” typically by a handwritten signature and posted at the facility. “Accordingly, those employers have no effective way to demonstrate to OSHA during an inspection or enforcement action that the 300A had been certified,” the attorneys observe. Another thing employers want to avoid is putting away old 300 Logs and never looking back, even if new information comes to light about injuries recorded on those logs. However, OSHA’s recordkeeping regulations require employers during the five-year retention period to update OSHA 300 Logs with newly discovered recordable injuries or illnesses, or to correct previously recorded injuries and illnesses to reflect changes that have occurred in the classification or other details. This requirement applies only to the 300 Logs and as a result technically there is no duty to update 300A Forms or OSHA 301 Incident Reports. Let's block ads! (Why?)

Can You Keep Guns Out of Your Workplace?

One of the hottest controversies polarizing the public debate in recent years is gun control, and the topic of guns in the workplace and public businesses continues to be a front-burner issue. The most prevalent of these are the “parking lot” laws that allow employees to keep guns in their vehicles parked at the plant or office building where they work.  Today 26 states have adopted such laws, although specifics of the laws vary from state to state following a string of high-profile cases where employees were fired after guns were found in their parked cars. “The thought that someone at your workplace may be armed can be startling, but you should be careful to avoid implementing policies that violate state laws protecting the rights of gun owners,” warns attorney Andrew Rogers of the law firm of Littler Mendelson in his written essay answering a query put to him by an employer in Tennessee. Tennessee’s parking lot law offers a useful example. It prevents employers from prohibiting any individual with a handgun carry permit recognized by the state to store a firearm and ammunition in his or her car parked on the employer’s property, subject to certain conditions. The vehicle must be parked where it is allowed to be. While the permit holder is in the vehicle, any firearm or ammunition must be “kept from ordinary observation.” When the permit holder is not in the parked car or truck, the firearm or ammunition must be secured in the locked vehicle—in the trunk, glove box or a container attached to the vehicle. As long as employees are able to satisfy these requirements, an employer in Tennessee cannot lawfully prevent them from storing a handgun in their cars. If you have operations in several states, you should research and review the parking lot laws that may apply to those locations, Rogers recommends. Other states have imposed conditions similar to those required by Tennessee, but a few are less restrictive. Many states’ parking lot laws do not require employees to have licenses or permits for the guns they are storing in their vehicles. Almost all of the states with parking lot laws explicitly allow an employer to prohibit firearms in a company-provided vehicle. In fact, no state specifically allows employees to store firearms in company vehicles. In addition, there are a myriad of other exceptions unique to different states, Rogers notes. In Georgia and Arizona, any parking lot owned by a U.S. Department of Defense contractor is exempt from their parking lot laws. Parking Lot Restrictions Vary Several states have imposed additional restrictions as well. Georgia also exempts certain entities from the state parking lot law, including jails, electric utilities and any employer with a parking lot next to facilities providing natural gas, liquid petroleum, water storage and vital law enforcement services. Utah and Florida maintain similar exemptions for school premises, religious organizations, government entities and single-family homes. Similarly, in Utah, Arizona and Louisiana, if employees are provided an alternative parking lot at no additional charge for vehicles with weapons, or a secure storage location where employees can store their firearms prior to taking a vehicle into the secured parking area, then an employer may be able to prohibit the storage of firearms in one of their parking lots. Keep in mind that nearly half of the states have not enacted laws to address this issue. If you operate out of Connecticut, New Mexico, North Carolina or Virginia, for example, an employer can restrict the presence of firearms in company parking lots. In other states, such as Colorado, the law is less clear. Employees are not entitled by statute to secure firearms in their vehicles in these states, and employers and property owners retain broad authority to prohibit the practice. However, in the absence of a policy clarifying the employer’s position on the possession of firearms and ammunition, employees may be allowed to carry firearms if they are in accordance with federal and state law. As a result, if an employer wishes to impose any restrictions, it would be important to develop a policy addressing the possession of weapons, including firearms, on its premises, Rogers says. The employer also has much firmer ground to stand on in the case of keeping guns out of the workplace even in situations where they are allowed in parking lots. “State legislatures have overwhelmingly determined that employers should be allowed to restrict firearms in the workplace, consistent with the traditional property rights,” Rogers points out. While property owners are generally presumed to be able to exclude individuals from their property, 24 states have passed laws explicitly allowing employers to prohibit firearms on their premises. In Tennessee, for example, an individual, corporation or business entity is allowed to prohibit the possession of weapons by employees at a workplace. To take advantage of this law, employers must post notice of the ban to all affected employees. Some states, like Nebraska and Minnesota, require that the employer personally request that someone carrying a gun on their property remove it from the premises. Many states require that employers post proper signage if they prohibit firearms on private property. In Tennessee, the property owner must display a notice stating, “NO FIREARMS ALLOWED” along with a specific pictorial representation of the phrase, both of which must be rendered in a specific size. The sign must be posted in prominent locations, including all entrances primarily used by people entering the property, and must be plainly visible to the average person. Some states are not as strict as Tennessee in their signage requirements. Missouri requires only that the sign be no smaller than 11 by 14 inches, and the writing not be less than one inch. Even less strict are North Carolina and New Mexico where, while signage can be used to prohibit firearms on private property, there are no requirements relating to the contents or design of the signs. Rights and Risks “Employers should also be aware that certain states treat firearm ownership as a pseudo-protected class,” Rogers asserts. In Indiana, an employer cannot require a job applicant to disclose firearm ownership, and cannot condition employment on limiting the employee’s rights, including the right to store a gun in a locked vehicle. In Georgia and Florida, employers cannot condition employment on an employee’s agreement to forego bringing firearms into the employer’s parking lot. North Dakota also prohibits employers from discriminating against an employee for bringing a firearm onto the premises if the firearm is never displayed for a purpose other than defense. Gun control opponents point out that in many cases in the recent past where active shooters have been firing on employees and schoolchildren in educational facilities, the shooters have been stopped by an employee on premises with a gun. However, Rogers also warns that employer liability stemming from their workers’ possession of firearms remains a valid concern in many cases. Fewer than half of the states with parking lot laws have provisions protecting employers from liability for injuries caused by firearms in the employer’s parking lot. Tennessee says employers are not liable for any harm or injury that occurs because someone stored a handgun in a locked car. “Thus, in Tennessee, an employer would have a defense against liability if a stranger trespassed into an employer’s parking lot, stole a gun stored in an employee’s car, and injured someone with that weapon,” Rogers explains. Only a handful of states address a related question: If an employer chooses not to restrict firearms at their facilities or parking areas when it could lawfully have done so, should it be liable for injuries resulting from a firearm in its workplace? Once again, Tennessee is among the states that have a law answering this question, according to Rogers. State law exempts employers from liability for any damage related to gun use on their premises, even in instances where employers failed to implement a policy prohibiting weapons on their property. For example, if an employer allowed its employees to conceal and carry guns in the workplace and an employee injures someone, the employer isn’t likely to be held liable for not prohibiting the firearm on its premises. Similarly, Kansas and Ohio have laws protecting private employers from liability if they do not prohibit firearms on their property. Ohio and Tennessee only protect against civil liability. The political controversy over gun control in all of its aspects is not going away. Employers need to arm themselves with knowledge of the laws in their states before taking actions to restrict their use on premises and if employees park on company-owned property. Let's block ads! (Why?)

EEOC Withdraws Permission for Wellness Incentives

As of Jan. 1, the Equal Employment Opportunity Commission (EEOC) has removed its former regulations that permitted employers to offer incentives to employees for their participation in wellness programs. In 2016, the commission issued regulations relating to wellness programs and how participation could be considered “voluntary” for purposes of the Americans with Disabilities Act and the Genetic Information Nondiscrimination Act. One requirement limited incentives under the wellness program to 30% of the cost of health coverage for them to qualify as a “voluntary” employee health program. Although the ADA and GINA Wellness Program Rules faced a number of court challenges, a lawsuit brought by the AARP argued that EEOC had failed to demonstrate how offering employees discounts of up to 30% of their health coverage (which meant imposing penalties of up to 30% for nonparticipation) would still allow the wellness programs to truly be considered voluntary for employees. In late 2017, the U.S. District Court for the District of Columbia agreed with AARP and ruled that the rules regarding the 30% incentive would be vacated effective Jan. 1, 2019. However, the EEOC waited until last November for moving to rescind the vacated incentive rules. That may seem to be the end of the story for employers, but it’s not. “In doing so, the EEOC left employers back in the quandary they were in before,” says attorney Patricia Anderson Pryor of the law firm Jackson Lewis. “Neither the law, nor the remaining regulations, expressly prohibit (or permit) incentives.” The remaining regulations provide that an employee health program including disability-related inquiries or medical examinations (including disability-related inquiries or medical examinations that are part of a health risk assessment) is voluntary as long as a covered entity: ● Does not require employees to participate. ● Does not deny coverage under any of its group health plans or particular benefits packages within a group health plan for non-participation or limit the extent of benefits for employees who do not participate. ● Does not take any adverse employment action or retaliate against, interfere with, coerce, intimidate, or threaten employees. ● Provides employees with a notice that is understandable by the employee, describes the medical information gathered and how it will be used, including how its dissemination will be restricted. Does offering an incentive—any incentive—violate these rules? “Only time will tell,” Pryor notes. EEOC earlier announced plans to issue new regulations by this June. In addition, the courts had only just begun analyzing this issue when the earlier regulations were issued. “In the meantime, every employer’s 2019 New Year’s resolution may need to include reviewing their wellness programs with counsel.” Or just forego having such incentives at all. Let's block ads! (Why?)

More Good News: Work-related Fatalities Slipped in 2017

There were a total of 5,147 fatal work injuries recorded in the United States in 2017, down slightly from the 5,190 that were registered in 2016, according to the annual report issued by the U.S. Bureau of Labor Statistics. That is still up substantially from the previous 14-year low of 4,551 in 2009. BLS also reports that the fatal injury rate decreased to 3.5 per 100,000 full-time equivalent (FTE) workers from 3.6 in 2016. A total of 27 states had fewer injuries in 2017 than 2016, while 21 states and the District of Columbia had more; California and Maine had the same number as 2016. A total of 192 metropolitan statistical areas (MSAs) had five or more fatal work injuries in 2017. The bureau reported that recordable injuries and illnesses in the private sector continued their 14-year slide in 2017. Employers had 2.8 total recordable cases per 100 workers, barely half the number reported in 2003, BLS notes. The transportation and material moving occupations, and construction and extraction occupation groups accounted for 47% of worker deaths in 2017. Transportation incidents remained the most frequent fatal event in 2017, accounting for 2,077 (40%) occupational fatalities, only down by six from 2016. Within the occupational subgroup driver/sales workers and truck drivers, heavy and tractor-trailer truck drivers had the largest number of fatal occupational injuries with 840. This represented the highest value for heavy and tractor-trailer truck drivers since the occupational series began in 2003, the bureau notes. On the other hand, fatal occupational injuries in the private manufacturing industry and wholesale trade industry were the lowest since this series began in 2003. Looking at the causes of deaths, BLS says fatal falls were at their highest level in the 26-year history of the Census of Fatal Occupational Injuries (CFOI), accounting for 887 (17%) worker deaths. Violence and other injuries by persons or animals decreased 7% in 2017 with homicides and suicides decreasing by 8% and 5%, respectively. Unintentional overdoses due to nonmedical use of drugs or alcohol while at work increased 25% from 217 in 2016 to 272 in 2017. This was the fifth consecutive year in which unintentional workplace overdose deaths have increased by at least 25%, the bureau points out. Contact with objects and equipment incidents were down 9% (695 in 2017 from 761 in 2016) with caught in running equipment or machinery deaths down 26% (76 in 2017 from 103 in 2016). In addition, fatal occupational injuries involving confined spaces rose 15% to 166 in 2017 from 144 in 2016. Crane-related workplace fatalities fell to their lowest level ever recorded with 33 deaths in 2017. BLS also says 2,989 of the total 5,147 fatal injuries in 2017 were incurred by workers over the age of 44, almost the same as the previous year’s 2,993. In addition, 15% of the fatally-injured workers in 2017 were age 65 or over – a series high. In 1992, the first year CFOI published national data, that figure was 8%. These workers also had a higher fatality rate than other age groups in 2017. Looking at the different ethnic groups, fatalities incurred by non-Hispanic Black or African-American workers and non-Hispanic Asian workers each decreased 10% from 2016 to 2017. In term of industry sectors, BLS reports that workplace fatalities in the private mining, quarrying, and oil and gas extraction industry increased 26% to 112 in 2017, up from a series low of 89 in 2016. Over 70% of these fatalities were incurred by workers in the oil and gas extraction industries. Fishers and related fishing workers and logging workers had the highest published rates of fatal injury in 2017. There were 258 fatalities among farmers, ranchers and other agricultural managers in 2017. About 63% of these farmers were age 65 and over (162) with 48 being age 80 or over. Of the 258 deaths, 103 involved a farm tractor. Grounds maintenance workers (including first-line supervisors) incurred 244 fatalities in 2017. This was a small decrease from the 2016 figure (247) but was still the second-highest total since 2003. A total of 36 deaths were due to falls from trees, and another 35 were due to being struck by a falling tree or branch. In what we can hope is a good sign, police and sheriff’s patrol officers also experienced a decrease in 2017, incurring a total of 95 fatal occupational injuries in 2017, fewer than the 108 fatalities in 2016. Let's block ads! (Why?)

OSHA Now Using Drones to Inspect Employer Facilities

Although many employers may not be aware of it, the Occupational Safety and Health Administration (OSHA) is now using drones to conduct safety inspections of employer facilities—but only if the employer consents. During 2018, OSHA reportedly used drones with cameras to conduct at least nine inspections of employer facilities after obtaining permission from the companies’ management. The drones were most frequently deployed following accidents at worksites that were considered too dangerous for OSHA inspectors to enter, including an oil drilling rig fire, a building collapse, a combustible dust blast, an accident on a television tower and a chemical plant explosion. Early in 2018, OSHA issued a memo to its staff formalizing its use of drones for inspection activities, ordering each of the agency’s 10 regions to designate a staff member as an unmanned aircraft program manager to oversee training requirements and evaluate reports submitted by drone teams. The memo sets forth the parameters OSHA must follow when using drones, including the fact that the employer must agree to their use. It also reveals that OSHA is exploring the option of obtaining a Blanket Public Certificate of Waiver or Authorization (COA) from the Federal Aviation Administration (FAA) to operate drones nationwide. Because employers must grant the agency permission for it to conduct the flyovers of their facilities, their expanding use puts employers in an uncomfortable position, some attorneys note, observing that OSHA’s use of drones has the potential to expand its violation-finding capabilities during any inspection. Drones quickly provide OSHA inspectors a detailed view of a facility, expanding the areas that can be easily viewed by an inspector, and significantly slashing the amount of time required for such an inspection if it was conducted on the ground, notes Megan Baroni, an attorney with the law firm of Robinson & Cole. While most inspections can and should be limited in scope, the fact remains that OSHA can cite employers for violations that are in plain sight, she points out. “Employers must consent to the drone use, but the question remains as to how the scope of an investigation might change if an employer refuses.” Baroni explains that it is unclear at this point whether the agency’s policy requiring employer permission will survive if OSHA is granted the Blanket Public COA it’s seeking from the FAA to use the drones anywhere in the country. She stresses that employers should be aware of this policy and the fact that drones could be a requested part of a future OSHA inspection. “Employers may want to give some thought to their facilities and whether drones can be safely flown without causing damage to equipment or processes,” she says. If an employer allows OSHA to use drones during an inspection, she recommends they consider getting involved from the outset in the development of the flight plan and attempt to get copies of any data that is collected. Drone Use Will Increase John S. Ho, an attorney with the law firm of Cozen O'Connor, also believes the use of drones in OSHA inspections is likely to increase, and he believes that raises some novel issues that need to be considered by employers. “Until some of these issues become more fully developed and depending, of course, on the specific facts, drones may present a situation where the employer might consider going against conventional thinking and err on the side of withholding consent,” he advises. It is well-settled that an employer can generally require OSHA to obtain an inspection warrant before entering the worksite, Ho explains. Although determining whether to do this is always a fact-sensitive analysis, he says conventional thinking suggests that the better course is usually to define the scope of the inspection with the OSHA inspector as opposed to requiring a warrant. Conventional strategy in responding to an OSHA inspection also includes the practice of the authorized employer representative accompanying the inspector, essentially mimicking the investigation This includes taking the same pictures, measurements and other actions so the employer essentially possesses the same data as the inspector gathered during the walkaround. When a drone is used it becomes extremely difficult to accomplish. If the employer decides to acquiesce to OSHA’s request, Ho’s recommendation coincides with Baroni’s advice, saying if the employer considers reaching an agreement with OSHA, it should include the specific flight plan to be used, agreeing that all photographs will be promptly shared and have the authorized representative observe the drone’s operation. However, Ho warns that even if the scope of the inspection is defined, citations generally still can be issued targeting recognized hazards whenever they are found “in plain sight.” He also says it seems likely a drone equipped with a camera might capture more hazards in “plain” sight than a traditional walkaround where the inspector is usually directed to the site of an accident by the most direct route. In addition, there is a danger that a company’s trade secrets may be exposed to the OSHA drone images. He urges employers make sure this issue is addressed and answered by OSHA before giving consent for drones in their facility. The bottom line is that OSHA’s use of drones is not going away and is likely to expand from worksites that are considered too dangerous for physically examinations by inspectors, to greater use in more routine facilities’ reviews. In facing that possibility, it is the employers’ job to make sure they are ready when that day comes. Let's block ads! (Why?)

Prepare Your Workforce for Winter

With the advent of winter comes a host of safety, health and legal issues that employers need to address before the weather worsens and temperatures drop to dangerous levels. Attorneys for the law firm of Fisher Phillips recently identified four risks that need attention: how to limit risks associated with cold-weather exposure, the dangers of this year’s flu season, how to properly compensate your workers during weather-related absences, and ensuring your company holiday party doesn’t lead to a lawsuit. Challenges to Safety Cold weather offers its own challenges when it comes to worker safety, especially when it comes to those employees who work outside. Prolonged exposure to freezing or cold temperatures can create serious health problems like trench foot, frostbite, hypothermia and, in extreme cases, death. Trench foot is caused by long, continuous exposure to a wet, cold environment, including actual immersion in water. Work involving small bodies of water or working in trenches with water pose particular threats. Symptoms include a tingling or itching sensation, burning, pain and swelling, sometimes forming blisters in more extreme cases. Frostbite occurs when the skin tissue actually freezes, causing ice crystals to form between cells and draw water from them. This typically occurs at temperatures below 30 degrees F, but wind chill can cause frostbite at above-freezing temperatures. Initially, frostbite symptoms include uncomfortable sensations of coldness, and a tingling, stinging or aching feeling of the exposed area which is then followed by numbness. Hypothermia occurs when the body’s temperature falls to a level where normal muscular and cerebral functions are impaired. While hypothermia is generally associated with freezing temperatures, it can occur in any climate where a person's body temperature falls below a normal level. The first symptoms of hypothermia—which begin when the individual's temperature drops more than one degree—include shivering, an inability to perform complex motor functions, lethargy and mild confusion. Obviously, employees should watch for these symptoms, including uncontrolled shivering, slurred speech, clumsy movements, fatigue and confused behavior. If the employee exhibits these danger signs emergency help should be called. There are many methods to protect your employees from the cold, including wearing protective clothing (such as gloves and hats), engineering controls and common safe work practices, the Fisher Phillips attorneys point out, and the government has free advice on many of them (see “Winter Safety Tips from OSHA” below). Battling the Flu Season Flu activity generally peaks in January, but it’s not uncommon for people to start displaying signs of the sickness well before the holidays. “The time to prepare for an outbreak is now,” the Fisher Phillips attorneys declare. Start by educating yourself about preventive steps you can take and planning for what to do if an outbreak hits your workplace this winter. Some common-sense measures are very easily implemented and cost-effective, such as urging workers to thoroughly wash their hands and to use proper cough and sneeze etiquette. Employers also can supply antibacterial or waterless soap and keep on hand cleaning supplies for telephones, keyboards and desks to limit the spread of germs. “In the coming weeks, you should introduce these measures and train your workforce to take advantage of them,” the attorneys say. “And of course, when the flu strikes, encourage those workers under the weather to stay at home in order to reduce the contagion.” A more aggressive approach to limiting flu cases could involve changing some workplace policies to encourage workers to avoid spreading the flu. This includes temporarily altering paid-time-off or attendance policies to prevent sick employees from rushing back to work while they can still spread the disease. If possible, you also could permit workers to telecommute or otherwise work from home during an outbreak so that their entire department doesn’t get wiped out for days or even weeks. At the first sign of symptoms, the lawyers suggest employers consider sending sick workers home or providing them with protective gear, such as face masks, to help prevent the spread of germs. The Fisher Phillips attorneys also believe it is a good idea to consider suggesting and even encouraging employees to get flu shots. You can even have a qualified medical professional to administer shots at your workplace. Requiring employees to get mandatory flu vaccinations is a controversial action, however. Many workers will refuse to comply, although in some industries like healthcare, mandatory flu shots are common. You must be prepared for employees objecting to the vaccination for a variety of reasons. Is the worker objecting on religious grounds? Can the vaccine aggravate another health condition or set off an allergic reaction? Does the employee simply fear needles? According to the EEOC, an employer must interact with any employee who objects to vaccines, whether based on religious or health reasons. You need to consider possible issues under the Americans with Disabilities Act and whether reasonable accommodations are necessary, the attorneys emphasize. “You should consider creating forms for employees to fill out if they want to request exemptions from any required inoculations based on religious, disability or medically-related reasons,” they add. “Make sure you have a team available to review and resolve any such requests in a professional and expeditious manner.” The Wages of Bad Weather When it comes to dealing with snow and freezing rain, company policies also should include how employees can find out if the business is open, how their schedule may be changed, what they should do if they are unable to make it to work or continue working due to the weather, and any reporting time rules for compensation that may apply under state law. If you already have such policies in place, now is the time to review them to make sure they are up-to-date, compliant with applicable federal and state wage and hour laws, and reflect the current company philosophy on these issues, the attorneys urge. Employees are treated differently under the Federal Fair Labor Standards Act (FLSA) depending on whether they are classified as exempt or non-exempt workers who are entitled to overtime pay. Non-exempt employees have to be paid only for the hours they work. Absent some contractual obligation—such as an individual employment agreement or a union contract—or obligations arising under public policy (such as reporting time regulations), you are not required to pay non-exempt employees if they miss work due to inclement weather. Also, it is permissible to make non-exempt employees use vacation time for weather-related absences, even for a half day—even if that would be a bad idea. “Of course, before implementing such a policy, you should consider how disgruntled your employees might be if they are forced to use vacation time when missing work,” the attorneys point out. “Your employees are more likely to favor a policy that allows them to choose whether to use a vacation day to cover their winter-related absence, or to simply not be paid if they are saving vacation for special plans.” Exempt employees are different—you must pay them their full salary for any week in which they perform work. For example, if your company is shut down for three out of five days during the workweek, you must still pay the exempt employees their normal weekly salary. To do otherwise signifies that an employee is not exempt and might lead to costly litigation, the Fisher Phillips attorneys warn. You are not required to provide paid vacation or time off for any employees, exempt or non-exempt. But if you have a vacation or paid time off policy that covers exempt employees, unless otherwise prohibited by local or state law, the attorneys say you may substitute or reduce the accrued leave for the time an employee is absent from work. “Even if the substitution is for less than a full day, it will not affect the classification of the employee as exempt,” the attorneys explain. “Either way, if the exempt employees work for a small portion of the workweek, they must be paid for the entire week, even if your operations are closed for a portion of the week.” What if your business stays open but an employee can’t make it to work? The Labor Department holds that if you are open for business and an exempt employee chooses not to or can’t report to work, you may count this as time off for personal reasons. For an exempt employee taking personal leave, you may deduct from in full-day increments only, not for half-days missed, the attorneys say. A salaried exempt employee who misses a full day of work due to personal reasons generally may receive a deduction of the day’s salary, although some restrictions may apply, such as when an employee works. If the employee shows up for work at noon and works until 6 pm, you can’t deduct from their pay (although you may be able to reduce their vacation leave bank). Coping with Holiday Parties There is always a human resources risk involved in holding any company-sponsored holiday party, and choosing to serve alcohol at these events only compounds the problem, the attorneys remind employers. According to one study, 36% of employers reported behavioral problems at their most recent company party. These problems involved everything from excessive drinking and off-color jokes to sexual advances and even fist fights. Since most employers still want to hold holiday parties despite the risks, the Fisher Phillips attorneys recommend several actions that employers can take to reduce their legal liability. One solution is to have a catered lunch at your offices without alcohol present. If you do hold an event where alcohol is served, you should invite spouses and significant others so that there will be someone there to help keep an eye on your employees and, if necessary, get them home safely. Always serve food and always have plenty of non-alcoholic beverages available. If your party is a dinner, consider serving only wine or beer (plus non-alcoholic alternatives) with the meal, not hard liquor. Don’t have an open bar where employees can drink as much as they want. Instead have a cash bar or use a ticket system to limit the number of drinks. Close the bar at least an hour before you plan to end the party and switch to coffee and soft drinks from there on. Also, make sure to let your managers know they will be considered on duty during the party. Instruct them to keep an eye on their subordinates to ensure they do not drink too much and inform the managers that they are not to attend any post-party parties. Consumption of alcohol lowers inhibitions and impairs judgment, which can result in employees saying and doing things that they normally wouldn’t. The attorneys stress, “Remind employees that, while you encourage everyone to have a good time, your company’s normal workplace standards of conduct will be in force at the party, and misconduct at or after the party can result in disciplinary action.” Another safety measure is to hire professional bartenders instead of using other employees. Tell the bartenders to report anyone who they think has had too much. Ensure that bartenders require positive identification from guests who do not appear to be substantially over 21. And arrange for a no-cost taxi or another driving service for any employee who should not drive home. “Finally, never, ever hang mistletoe!” the lawyers warn. “Just as R plus L probably equals J, you can be sure that mistletoe + alcohol = lawsuit.” Winter Safety Tips from OSHA The Occupational Safety and Health Administration has issued a Cold Stress Card including tips on handling cold weather. Free copies of it are available in both English and Spanish from the agency’s website or by calling 800-321-0SHA. OSHA’s tips include: ● Recognize the environmental and workplace conditions that may be dangerous. ● Learn the signs and symptoms of cold-induced illnesses and injuries and what to do to help employees. ● Train employees about cold-induced illnesses and injuries. ● Encourage employees to wear proper clothing for cold, wet and windy conditions, including layers that can be adjusted to changing conditions. ● Be sure that employees in extremely cold conditions take frequent, short breaks in warm dry shelters to allow their bodies to warm up. ● Try to schedule work for the warmest part of the day. ● Avoid exhaustion or fatigue because energy is needed to keep muscles warm. ● Use the buddy system: Work in pairs so that one employee can recognize danger signs. ● Drink warm, sweet beverages (sugar water, sports-type drinks) and avoid drinks with caffeine (coffee, tea, sodas or hot chocolate) or alcohol. ● Eat warm, high-calorie foods such as hot pasta dishes. ● Remember that employees increase their risks when they take certain medications, are in poor physical condition or suffer from the flu or chronic illnesses like diabetes, hypertension or cardiovascular disease. Let's block ads! (Why?)

English-Only Workplace Rules May Be Too Big a Risk

Just a few years ago it was not that unusual to hear widespread reports of employers who wanted to maintain English-only workplaces, and the finely-parsed legal requirements routinely applied that allowed it to happen. Changes in the law and the country’s demographics are making it increasingly difficult to justify such requirements. Even when well-intentioned, these policies may serve as the basis for discrimination claims against employers or be loaded in with other kinds of claims for additional penalties. If you have an English-only policy and state or federal agencies find you have discriminated on the same population regarding wages and working conditions, for example, you can expect they also will scrutinize any workplace for policies aimed at the same protected group. On your side if you do have such a policy, in general the rules requiring employees to speak English in the workplace are seen as violating federal civil rights or other anti-discrimination laws. Exceptions exist only when the employer can show a legitimate, non-discriminatory reason for the rule and you can establish that it is practical for employees to comply with the restrictions. Non-discriminatory reasons for English-only rules may include maintaining employee morale or preventing alienation of employees, assisting management in supervising employees, and following safety rules and instructions in hazardous environments. Proficiency in the English language also may be a permissible job requirement so long as it is a key component of the job position, notes Dana N. Berber, an attorney with the Akerman law firm. However, employers need to keep in mind that the Equal Employment Opportunity Commission (EEOC), in its regulations and published guidance on national origin discrimination, has stated that any rule requiring employees to speak English at all times is simply assumed to be in violation of anti-discrimination laws. This is something that should be taken seriously. EEOC in the last few years has pursued a national strategic plan where rooting out ethnic and national origin discrimination is a top priority. This means an English-only policy can easily become a ticking time bomb for any employer. “Blanket rules—requiring employees to speak only English at all times without qualifications—will rarely be justified,” Berber points out. EEOC guidance permits an English-only policy in the workplace if the rule is applied only in limited situations, is justified by business necessity, and the employer has clearly notified employees of the policy and the penalties for violating it. EEOC asserts that a business necessity for imposing an English-only policy can arise only when English is needed for the employer to operate safely and efficiently, in dealing with customers or co-workers who only speak English, or during emergencies. The U.S. Department of Labor (DOL) also limits English-only policies under similar criteria, but adds that employers also can mandate such workplace rules to allow supervisors who speak only English to monitor the performance of employees whose job duties require communication in English. “Despite guidance from the EEOC, DOL and other government agencies, there is no bright-line rule for employers regarding English-only policies,” Berber explains, adding that state and federal courts are continuing to grapple with the issue on a case-by-case basis. Finding the Right Reason In New York State, courts have held that English-only rules are not considered discriminatory if a legitimate business justification can be shown. New York courts have further explained that so long as an employer does not restrict employees’ language during their personal breaks and does not prohibit some non-English languages in the workplace while permitting others, then English-only rules may be permissible if they are needed to ensure workplace efficiency and cooperation. A New Jersey appellate court recently held that while such workplace policies are not necessarily unlawful, they can be proven to violate the New Jersey Law Against Discrimination if an English-only rule is found to have been used as a pretense for discrimination on the basis of national origin, ancestry or another protected characteristic, such as religion. That same court also stated that a discharge for speaking another language in the face of an English-only or mainly-English rule would not be considered alone to be a violation of New Jersey or federal anti-discrimination laws. Some states, however, have stricter rules to limit the use of English-only policies. The California Fair Employment and Housing Council issued rules that went into effect last July permitting English-only rules only in situations where an employer can show an overriding and legitimate business purpose that makes language restriction necessary for safe and efficient operation. In addition, the new regulation requires that English-only can be sustained if no alternative method exists that can accomplish the employer’s goals but has less of a discriminatory impact. California’s new standard expressly prohibits English-only requirements from being imposed during off-duty hours or employee break times and requires that employees be informed about the details of the policy before being subjected to any discipline for their violation. Berber warns that employers today should proceed very carefully before implementing English-only workplace policies and should write such policies narrowly, including solid business justification. Even unwritten or informal policies, like a supervisor encouraging employees to speak English, may be construed as an English-only rule that improperly discriminates against certain employees. Remember that such incidents eventually can lead to unwelcome scrutiny by the EEOC and other government agencies. When they accompany charges of other kinds of discriminatory practices, they will only add to your burden of misery. “Any practice that effectively discriminates against non-English speaking employees can leave employers susceptible to discrimination claims, so these policies should be carefully evaluated for any possible discriminatory effects and effective alternatives,” Berber stresses. Because of the complicated and changing nature of today’s workplace laws, she urges employers to seek advice from legal counsel before implementing any new procedure or policy that may treat certain groups of employees differently based on their language abilities. Let's block ads! (Why?)