Author Archives: David Sparkman

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?)

Cause to Celebrate: Workplace Injuries Continue to Decline

If you want some good news to celebrate for a change, we’ve got it for you: Government data shows that recordable injuries and illnesses in the private sector continued their drop in 2017, with 45,800 fewer cases among adult full-time equivalent (FTE) employees than there were in 2016. What’s more, the data also shows that steady improvement in injury rates has been made in all industry sectors over the past 14 years, according to a recent report released by the Department of Labor’s Bureau of Labor Statistics (BLS). These numbers are impressive. But what is surprising is that they have not garnered more attention from the news media. The only article I’ve seen to date appeared in an engineering trade journal. It seems the old cliché that good news is no news continues to be true in the United States. That doesn’t mean that we can’t take some satisfaction in these numbers, even while we keep in mind that the ultimate goal should always be zero accidents in any workplace. “All measures—including missed workdays, OSHA recordable incidents, injury-caused work restrictions—have declined steadily this century,” notes Courtney M. Malveaux, an attorney with the law firm of Jackson Lewis. “Employers had 2.8 total recordable cases per 100 workers, barely half the number reported in 2003. Importantly, all sectors surveyed showed a decrease, including manufacturing, construction, healthcare, transportation and warehousing. That means fewer days missed, fewer injuries and fewer workers’ compensation claims,” he adds. Looking at the 2017 numbers we find: ● The 2017 rate of total recordable cases (TRC) fell 0.1 cases per 100 FTE workers to continue a pattern of declines that, apart from 2012, has occurred annually since 2004. ● The rates for different types of cases—days away from work (DAFW), days of job transfer or restriction only (DJTR) and other recordable cases (ORC)—were unchanged from a year earlier. ● The rate for DJTR cases has remained at 0.7 cases per 100 workers since 2011. ● Nearly one-third of nonfatal occupational injuries and illnesses resulted in days away from work. ● Among the 19 private industry sectors, only manufacturing, finance and insurance experienced statistically significant changes in their overall rates of nonfatal injuries and illnesses in 2017—each declined by 0.1 cases per 100 full-time workers compared to 2016. Manufacturing Does Well Manufacturing was No. 2 on the BLS list of injuries reported, with employers in that sector experiencing a total of 426,900 recordable non-fatal injuries and illnesses in 2017. Another important measurement used by BLS shows there were a grand total of 882,730 occupational injuries and illnesses in 2017 that resulted in days away from work (DFAW) in private industry, essentially unchanged from 2016 at 93 cases per 10,000 full-time workers. This difference between the total number of injuries and DAFW also was reflected in manufacturing. While the incidence rate of total recordable cases in manufacturing decreased in 2017, there were 115,550 DAFW cases in the sector, which was essentially unchanged from 2016. Sprains, strains and tears was the leading type of injury in manufacturing at 34,110, unchanged from 2016, BLS reported. The rate of 27.5 cases per 10,000 full-time workers was also unchanged from 2016. The median days away for injuries from sprains, strains and tears was 10, one day fewer than in 2016. “The manufacturing sector had particularly good news, with median days away from work dropping to eight, a day fewer than in 2016,” Malveaux points out. “An area where manufacturers can focus is its leading cause of injury—sprains, strains and tears—which did not see a decrease in the past year.” BLS reports that four minor level occupation groups accounted for 67% of DAFW cases in 2017, including other production workers at 30,210 cases; metal and plastic workers at 19,610 cases; and material moving workers at 15,260 cases. The fourth group among these—assemblers and fabricators—was the only one with a decrease, down 900 DAFW cases in 2017 to 12,140. The Most Prevalent Injuries When it came to the type of injuries that accounted for these numbers, the number of DAFW cases involving overexertion in lifting or lowering rose by 3,250 cases to 97,990 in 2017, while the rate was unchanged at 9.9 cases per 10,000 full-time workers. The number of DAFW cases involving workers struck by objects or equipment fell 4,180 cases to 136,510 in 2017 and the rate decreased to 13.8 cases per 10,000 full-time workers, down from 14.5 in 2016. The number of DAFW cases in manufacturing where the event or exposure was overexertion and bodily reaction fell by 1,690 cases to 40,680 in 2017. The rate decreased to 32.7 cases per 10,000 full-time workers from 34.1 in 2016. Musculoskeletal disorders accounted for 34% of the DAFW cases in manufacturing and fell 1,930 cases to 38,950 in 2017. The rate was 31.4 cases per 10,000 full-time workers, down from 32.9 in 2016. The median days away from work was 12, two days fewer than in 2016. For the construction industry, the 2017 results of a total of 198,100 cases marks its third straight year-over-year decline in injuries and illnesses, after a 1.9% increase in 2015. In addition, the BLS numbers reveal that the 2017 nonfatal injury rate per 100 full-time workers also edged down, to 3.1 per 100 full-time workers, a decline from 3.2 in 2016. That number has steadily improved in recent years from 3.6 in 2014, to 3.5 in 2015 and 3.2 in 2016. In the warehousing and transportation sector, the 2017 total was 215,700 cases, with the number of DAFW cases rising by 2,930 cases to 17,390 in 2017. The incidence rate (182.4 cases per 10,000 full-time workers) in 2017 was essentially unchanged from 2016. DAFW cases resulting from overexertion and bodily reaction rose 1,350 cases to 8,310 in 2017; contact with objects and equipment rose 620 cases to 4,370; and falls, slips, or trips rose 480 cases to 3,030. Lumping mining, quarrying, and oil & gas extraction into a single category, BLS reported a total of 10,200 injury and illness cases in 2017 for that capacious category. We will provide additional analysis and information after BLS releases its fatal injury and illness data this December. Let's block ads! (Why?)

E-Scooters Create New Headaches for Employers

It was a bright, sunny late October day in Austin, Texas, when my wife and I strolled down the sidewalk heading from our hotel to the nearby shopping district. We got to the street corner and I suddenly tripped over something I hadn’t seen. I looked down to find my feet tangled in an electronic scooter lying flat on the sidewalk. I would have tumbled onto the pavement if it hadn’t been for my wife, who also stopped me after I started angrily kicking at this newest personal transportation fad. If I had injured myself, I wouldn’t have been alone. Emergency rooms in cities across the country that have experienced the proliferation of this new kind of for-hire personal transportation are seeing a spike in injuries to e-scooter riders and sometimes their pedestrian victims as well. One Salt Lake City hospital has experienced a 161% jump in emergency room visits that can be directly traced to the new conveyances. In other cities where the e-scooters have suddenly appeared, soon after so have similar increases in reports of injuries like scrapes, bruises, lost teeth, broken bones and head injuries. The latter stems from most riders’ failure to wear helmets. In fact, in every city where I have seen these scooters in use, I have never seen a single rider wearing a helmet. And by saying that the e-scooters “suddenly appeared” I mean that quite literally. An essential part of the business model for the companies introducing e-scooters is to immediately start operating in a city prior to negotiating with the local government. Their apparent strategic concept is summed up by the old saw that it’s better to seek forgiveness than to ask for permission. The companies’ common practice is to negotiate with city officials after the e-scooters are already a fact on the ground. While that practice has succeeded in most metropolitan areas, it didn’t work in Miami and Nashville, where both have banned them after city officials were unamused. Keep in mind that we are talking about a multi-million-dollar business that sprung up seemingly out of nowhere, started by Travis VanderZanden, a former executive at Lyft and Uber, fueled by venture capital. The largest of these companies is Bird, which introduced its first e-scooters to the public in its hometown of Santa Monica, Calif., in September 2017, and soon afterward began to spread to major metropolitan areas, quickly penetrating more than a dozen other cities. Today Bird and its competitors like Lime and Skip operate in 10 countries and more than 125 cities in the U.S. Bird alone boasts having already racked up more than 10 million rides and has attracted enough investment interest that the company is currently valued at $2 billion. Key to making the economics of the system work are individual private contractors, called “chargers,” who charge the scooters’ batteries overnight, then place the scooters in designated “nest” areas throughout the service area each morning. Competition arises among chargers when they use their own vans to pick up the e-scooters left all over the city each evening, with the company paying them a bounty of between $3 and $5 per retrieved scooter. No sooner had Bird first introduced e-scooters in its home town last year than a rash of injuries began to appear. Dr. Lisa Dabby, who works in the emergency room of UCLA’s Nethercutt Emergency Center, told NBC News, “Since scooters launched in Santa Monica, I’ve seen a large number of people who’ve lost their teeth, who come in with broken bones, head injuries, skull and facial fractures. And I’ve seen a lot of tears, because it’s a really big deal to need surgery or new teeth.” So far, at least two people have died in accidents across the country. One problem with assessing the danger arising from these devices is that health officials only recently began systematically gathering injury data needed to formally evaluate their safety record. As another doctor observed, “Fifteen miles an hour doesn't sound that fast until you bounce your head off something." Who Is Liable for Injuries? Another essential element to the success of Bird and the other e-scooter companies has been the elaborate service agreements they force a customer to sign before using one. Often these agreements include a “hold harmless” clause absolving the company of any liability if there is an accident. (The agreements also require riders to wear helmets). One problem is that even if the customer has their own medical and auto insurance, whenever an injury claim is filed the insurance providers point to each other as the responsible party for making good on the claim. Bird’s customer agreement explicitly warns that auto insurance may not cover accidents. The liability issue also creates a headache for employers when workers are injured while using e-scooters in the course of business, according to attorney Susan M. Schaecher of law firm Fisher Phillips. She cites the case of a Denver man who was using an e-scooter to get across town for a business meeting when he was physically attacked by an angry pedestrian, who took exception to the fact that he was using the scooter on the sidewalk—which is legal in Denver. This brings up another problem—the laws for operating e-scooters are not well known and vary considerably from location to location, Schaecher observes. In Denver they are classified as “toy vehicles” and are not allowed in bike lanes or in general traffic. In California, e-scooters may not be ridden on sidewalks and must be ridden on the street or in bike lanes. My experience in Austin tells me they are allowed there on both sidewalks and bike lanes. Given the differing speeds of bikes and scooters, it is quite entertaining—in a NASCAR spectator sort of way—watching them try to avoid colliding with one another in the bike lanes. Employer liability will continue to grow, Schaecher believes, because it is likely e-scooters will be around a while. “Companies like Uber and Lyft are investing significant sums in this new form of transit. Many people are excited by this option for sustainable and economical car-free commuting. Companies like Google are providing e-scooters to their employees for business use. It is inevitable that employees in cities with the devices will use them on the job.” Generally, workers’ compensation insurance doesn’t cover injuries sustained by an employee while commuting to a fixed place of employment, she notes. However, it can cover injuries that occur while traveling on work-related business (travel in the course and scope of employment). “When employees travel between offices, to and from meetings, or run errands for their employer, it doesn’t matter if they are in a car, on an e-scooter or on foot,” Schaecher stresses. Employers also can be held vicariously liable for accidents and injuries their employees cause others while traveling in the scope of their job. She explains that companies can be viewed as a deep-pocketed target in the absence of others who can be sued. “Injured persons may have limited recourse against the e-scooter companies—user agreements limit users to binding arbitration and/or disclaim liability—which may lead some injured persons to look elsewhere for relief.” In instances where local government codes fail to address safety issues like helmet use and speed limits, employers may address these issues in their policies, Schaecher says. For example, a policy might state that the speed of devices shall be limited to a prudent rate for the conditions. A policy could require that helmets—either employees’ or helmets provided by the company—must be worn and meet appropriate safety standards. “A general prohibition against participating in any activity that reasonably presents a risk of injury to persons or damage to property while using a device may cover stunts, intoxication and a lot of other ground,” she adds. Any policy also should be sure to distinguish the proper use of medical devices and equipment used by persons with disabilities. Schaecher says provisions employers may choose to borrow from vehicle use policies for codes of conduct when using e-scooters. This can include stating: ● Employees must know and abide by all applicable laws and regulations. ● Employees are responsible for all citations received. ● Headphones, earphones and cell phones may not be used during operation. ● Only devices with the required, functioning safety devices (lights, reflectors) may be used on company business. ● Users must have a valid driver’s license. ● Passengers are not allowed. ● Users are responsible for being in control of the device at all times so as not to endanger the safety of themselves or others. “It won’t be long before other new transportation technology is on the scene, including self-driving cars,” Schaecher points out. “Employers need to be aware of what technologies their employees are using for business and set reasonable terms for use.” Safety Tips from Doctors California’s Cedars-Sinai Hospital System also offers general safety recommendations to be followed by those who use e-scooters. “As riders flock to electric scooters propped on city sidewalks everywhere, sometimes their trips take them somewhere they didn’t want to go: the emergency room,” the hospital’s professionals warn. They have treated quite a few of their patients who have been forced to learn these lessons the hard way. “We’re seeing these injuries daily, and at least once or twice a week we’re seeing someone who needs an urgent surgery,” says Dr. Natasha Trentacosta, an orthopaedic surgeon at the Cedars-Sinai Kerlan-Jobe Institute who is working on an epidemiological study of electric scooter-related injuries. “These can be life-changing injuries, and they can often be prevented.” Many riders forget one important fact: “If you fall, you’re going to get hurt,” says Dr. Sam Torbati, co-chair of Emergency Medicine at Cedars-Sinai. “It’s a moving vehicle and it’s not any safer than riding something like a moped. It goes fairly fast.” Although current speeds are 15 mph, Bird has asked the California State Legislature to raise the speed limit for them to 25 mph. A few years ago, when self-balancing scooters or hoverboards were popular, similar injuries turned up, mostly among younger people, according to the Cedars-Sinai doctors, but this new trend has plenty of riders in their 40s and older crashing or falling off the scooters. “Everyone really should wear a helmet on these,” Dr. Torbati says. “An adult who falls is just as likely to hit their head as a minor.” And you can add to the injury total a fair number of people who are getting hurt by tripping over scooters abandoned in sidewalks and doorways, too, both Dr. Trentacosta and I would like to remind you. E-scooters, like any motorized vehicle or bike, can be used safely with a little common sense, according to Dr. Torbati: ● Wear protective gear. In addition to a helmet, that means wrist guards, knee and elbow pads, and close-toed shoes. ● Start off slowly. The accelerator and braking tabs on the handles can take getting used to. ● Be mindful of surrounding traffic, especially at intersections. ● No one-handed rides. Put down the phone and the coffee cup. ● No headphones or earbuds while operating the scooter. ● Don’t try to operate an electric scooter if you’ve been drinking alcohol. ● Be mindful of your safety, and the safety of others. Be alert to pedestrians and other vehicles. Make sure to leave the scooter out of the way of foot traffic, so it doesn’t create a tripping hazard. “It’s a fun vehicle,” Dr. Torbati says. “Just remember it can go fast and take some steps to protect yourself.” And those around you, I would like to add. Let's block ads! (Why?)

Robot Safety: It’s Not Science Fiction, It’s the Law

Some journalists and commentators can’t seem to write about industrial robots without making the inevitable references to science fiction writer Isaac Asimov and the “Terminator” movies. The truth is that robots have been around for many decades—and so have the laws and regulations addressing their safety issues. It was 1987 when the Occupational Safety and Health Administration (OSHA) issued its Guidelines for Robotics Safety. The agency said at that time, “With the burgeoning use of robots in industry, it is feared that without adequate guarding and personnel training, injury rates for employees working with robots may increase.” Robots have long been deployed to perform unsafe, hazardous, highly repetitive and unpleasant tasks, with the express intent of reducing potential hazards associated with those functions while increasing productivity. Perhaps the only labor leader to fully embrace automation was John L. Lewis, president of the United Mine Workers Union, precisely because it made underground mining safer for his members. Attorneys for the law firm of Seyfarth Shaw LLP point out that early robots, which mainly conducted pre-programmed tasks and did not have the advanced computer intelligence that many now possess, created potential hazards not only under normal operating conditions, but also during programming, adjustment, testing, cleaning, inspection and repair periods. From the robots’ introduction, it was quite common for employees—such as operators, programmers and maintenance workers—to walk within the robot’s work envelope while power remained available to the device’s moveable elements. “Now, some 30 years after their widespread appearance in the workplace, robotics and computer automation have permeated nearly every industry, including manufacturing, warehousing and even retail, potentially exposing additional workers to hazards. In Japan, some coffee shops now serve coffee utilizing robotic baristas,” the lawyers observe. Some safety experts believe OSHA’s current regulations are inadequate and need extensive updating. Last year the National Institute for Occupational Safety and Health (NIOSH) created a Center for Occupational Robotics Research to assess potential benefits and risks of robot workers and develop guidance for safe interactions between humans and robots. The center is the result of an alliance agreement that OSHA, NIOSH and the Robotic Industries Association signed in October 2017. The pact calls for them to work together to enhance OSHA’s and NIOSH’s technical expertise, improve awareness of workplace hazards associated with robots and identify areas of needed research to reduce workplace hazards. “Robots working collaboratively with humans present a new workplace risk profile that is not yet well understood,” said John Howard, NIOSH’s director at the time. "Not only is this a new field for safety and health professionals; little government guidance or policy exists regarding the safe integration of robots into the workplace.” When the new center was announced, NIOSH researchers had already been able to identify at least 61 robot-related workplace deaths that took place between 1992 and 2015. “We suspect fatalities will increase over time because of the growing number of industrial robots being used by companies in the U.S., and from the introduction of collaborative and co-existing robots (cobots), powered exoskeletons and autonomous vehicles into the work environment,” says Dawn Castillo, director of NIOSH’s Division of Safety Research and the center’s program manager. OSHA Is Watching While there are no OSHA regulations that specifically address robot safety at present, that doesn’t mean the agency won’t come after an employer when an accident involving a robot occurs. Just ask automaker Nissan North America Inc., which in August was forced to pay a $12,675 OSHA penalty after it was upheld by an administrative law judge. In July 2016, a Nissan contract employee was in the process of replacing a motor on a robot on the first floor of a company facility at the same time that three company maintenance technicians conducted a preventive maintenance inspection on a conveyor on a floor above. When the contract employee was done with his work, he started the conveyor back up. At that moment, a technician placed his hand on the conveyor belt and was pulled into it, amputating three of his fingers. The judge upheld Nissan’s citation for violating the OSHA standard covering training requirements. “The standard requires initial training be sufficient for employees to acquire the skills necessary to perform safe lockout,” the judge said. “For the technicians working on [the overhead conveyor], Nissan’s training did not meet this standard.” OSHA’s Lockout/Tagout (LOTO) and other regulations require employers to protect employees from unexpected energization of machinery by, among other things, making sure all sources of energy are dissipated when the machines are not in use and installing a lock to prevent accidental startup. When it comes to robots, the primary source of protection from unexpected movement is a programmable logic controller (PLC). Under OSHA’s rules, PLCs are expected to limit robots from moving when not performing their pre-programmed tasks and functions, or if a certain condition is met—such as when an interlocked door is open. While these PLC devices typically “fail to safe,” OSHA has been reluctant to accept them as equally effective means of employee protection along the lines of machine guarding or LOTO, the Seyfarth Shaw attorneys note. Intrinsic faults within the PLC control system of the robot include errors in software, electromagnetic interference, as well as radio frequency interference, OSHA believes. In addition, the agency holds that these errors can occur due to faults in the hydraulic, pneumatic, or electrical sub-controls associated with the robot or robot system. OSHA’s Tech Manual To help employers, OSHA has created an online technical manual for employers to learn about the hazards associated with robotics and automated machinery, including those that stem from malfunctions or errors in programming or interfacing with peripheral equipment. In addition, the Robotics Industries Association offers an extensive safety program for employers on its website that covers everything from ANSI standards and RIA technical reports (which OSHA relies on) to public and in-house safety training opportunities that are available from the association. The OSHA technical manual groups robotic incidents into four categories: impact or collision accidents, unexpected movements, component malfunctions, and unpredicted program changes related to the robot’s arm or peripheral equipment that result in contact accidents. Here are some specific dangers OSHA says you should look out for: Crushing and trapping accidents. Situations where worker’s limbs or other body parts can be trapped between a robot and other peripheral equipment, or the individual may be physically driven into and crushed by other peripheral equipment. Mechanical part accidents. OSHA defines a mechanical accident as one that involves breakdown of the robot’s drive components, tooling or end-effector, peripheral equipment, or its power source. Examples of mechanical failures include the release of parts, failure of gripper mechanism, or the failure of end-effector power tools, including grinding wheels, buffing wheels, deburring tools, power screwdrivers and nut runners. Other accidents resulting from working with robots. This category includes equipment that supplies robot power and control and represents potential electrical and pressurized fluid hazards. For example, ruptured hydraulic lines could create dangerous high-pressure cutting streams or whipping hose hazards. OSHA also lumps into this category environmental accidents from arc flash, metal spatter, dust, electromagnetic, or radio-frequency interference that also can occur, and equipment and power cables on the floor that can present tripping hazards. OSHA adds that other expected sources of potential robotics hazards include human errors in programming, interfacing peripheral equipment, or connecting live input-output sensors to the robot or a peripheral device which can cause dangerous, unpredicted movement or action by the robot. The incorrect activation of the “teach pendant” or control panel is a frequently-found human error, the agency observes. “The greatest problem, however, is operators’ familiarity and complacency with the robot’s redundant motions so that an individual places himself in a hazardous position within the robot’s ‘work envelope’ while programming the robot or performing maintenance on it.” Another problem is unauthorized access by employees who may not be familiar with safeguards in place or their activation status. Pneumatic, hydraulic, or electrical power sources with malfunctioning control or transmission elements in the robot power system can disrupt electrical signals to the control or power-supply lines. Other hazards include electromagnetic or radio-frequency interference (transient signals) that can affect robotic operation, OSHA warns. “While OSHA does not have regulations specific to robots in the workplace, employers would be wise to conduct job hazard analyses and evaluate any existing or potential robotic equipment installation, to abate any hazards posed by these machines,” the Seyfarth Shaw attorneys stress. David Sparkman is founding editor of ACWI Advance, and a contributing editor to EHS Today. Let's block ads! (Why?)

Employee Willingness to Go Above and Beyond Hits 3-Year Low

The number of U.S. employees willing to go above and beyond the call of duty in the workplace has dropped by nearly 10% over the last three years, according to Gartner Inc.’s recent quarterly Global Talent Monitor survey In the report for the second quarter of 2018, only 17.8% of workers expressed high levels of discretionary effort, versus 27% in the second quarter of 2015, the global research and consulting company revealed. Covering roughly the same period, the Gallup organization’s research found that while in the United States 33% of employees say they are engaged at work, globally only 15% of employees reported being engaged. Gallup defines being engaged as being willing go the extra mile, work with passion and feel a profound connection to their company. “Engaged workers stand apart from their not-engaged and actively disengaged counterparts because of the discretionary effort they consistently bring to their roles,” Gallup says. “These employees willingly go the extra mile, work with passion, and feel a profound connection to their company.” But why are workers less engaged today than they were just a handful of years ago? The stronger economy and almost full employment are the primary reasons, Gartner’s researchers conclude. “A higher number of employees have expressed a growing dissatisfaction with rewards, compensation and opportunities, which has resulted in a decrease in the amount of effort employees are putting forth at work,” says Brian Kropp, group vice president of the company’s human resources practice. “This disappointment coupled with strong economic conditions and a candidate-driven labor market means many workers are not incentivized to work harder nor are they concerned about losing their jobs through dismissals or layoffs.” Gartner says that nearly 40% of workers in the U.S.—and globally—ranked lack of future career opportunities as the most dissatisfying attribute at a previous job. Compensation, which was previously the number one driver of attrition, is now the second most important attribute for U.S. and global workers. “With recent U.S. reports showing little growth year over year in real earnings, workers hope to achieve more satisfaction in their jobs through better titles and opportunities to advance and grow in their current careers,” says Kropp. “To prevent further reduction in workplace effort and to retain top talent, employers should pay closer attention to employee dissatisfaction about the lack of career opportunities, particularly if wage growth remains stagnant.” The Rules of Engagement To succeed in a tight labor market, organizations must retain their top performers while attracting new talent. Gartner stresses that successful companies are those that have a strong Employee Value Proposition (EVP) that differentiates them from the competition and speaks to what employees want most: career development opportunities, competitive compensation and work-life balance. “Leading organizations are able to use their employment brand to illustrate why their career opportunities are better than their competitors,” Kropp observes. “A company’s EVP directly correlates to employee engagement levels because workers are more likely to work harder and stay in their current positions if they are highly satisfied with their company’s EVP offerings. Data shows that organizations with high levels of employee engagement report financial outcomes three times higher than firms with lower engagement levels, Gartner notes. Gallup also believes that not-engaged employees offer perhaps the greatest untapped opportunity for businesses to improve their performance and profitability. “The majority of the global workforce is not engaged. Most employees reluctantly head to work, lacking energy and passion for their jobs,” Gallup says. “Converting this group of employees into engaged workers is the most effective strategy that any organization can implement to increase performance and sustainable long-term growth.” Not-engaged workers can be difficult to spot, Gallup admits. Generally, they aren’t overtly hostile or disruptive and are likely do just enough to fulfill at least the requirements of their jobs. “They sleepwalk through their day, uninspired and lacking motivation. They have little or no concern about customers, productivity, profitability, safety or quality. They are thinking about lunch or their next break and have essentially ‘checked out.’” As a result, it’s not surprising that for many years management consultants and human resources specialists devoted considerable effort at solving this problem by developing a wide range of methods for measuring employee engagement as well as the management methods and training programs for improving it. But for management to make these systems work requires attention to detail and commitment throughout managerial ranks. Leaders of the best companies strategically align their employee engagement efforts across their organizations, Gallup says. “They find ways to communicate engagement’s effect throughout the year and share best practices across the organization. They use every opportunity, touchpoint and communication channel to reinforce and recognize the organization's commitment to employee engagement. They integrate employee engagement fully into the business’s lexicon.” In addition, top leadership needs to focus on the attitudes and behaviors of managers as well as their workers. Another recent Gallup poll found the most frequent reason employees give for quitting their jobs is dislike of their bosses. “How leaders manage their employees can substantially affect engagement levels in the workplace, in turn influencing the company’s bottom line,” Gallup asserts. How to Do It Right To assist management in developing effective employee engagement programs, Gallup has laid out five strategies that organizations can use to help build their constituency of engaged employees. (Much of this advice is aimed at companies using Gallup’s Q12 employment engagement measuring tool). Use the right employee engagement survey. When a company asks its employees for their opinions, those employees expect action to follow. But businesses often make the mistake of using employee surveys to collect data that is irrelevant or impossible to act on. Gallup says survey data must be specific, relevant and actionable for any team at any organizational level. Data should also be proven to influence key performance metrics. Focus on engagement at the local and organizational levels. Real change occurs at the local workgroup level, but it only happens when company leaders set the tone from the top. Companies realize the most benefit from engagement initiatives when leaders weave employee engagement into performance expectations for managers and enable them to execute on those expectations. “Managers and employees must feel empowered to make a significant difference in their immediate environment. Leaders and managers should work with employees to identify barriers to engagement and opportunities to effect positive change. Employees are familiar with the company's processes, systems, products and customers,” Gallup stresses. “Employees also are experts on themselves and their teams, so it makes sense that they will have the best ideas to maximize these elements and deliver improved performance, business innovation and better workplace experiences.” Select the right managers. The best managers understand that their success and that of the organization relies on employees’ achievements. But not everyone can be a great manager. Great managers care about their people’s success. They seek to understand each person’s strengths and provide employees with every opportunity to use their strengths in their role. “Great managers empower their employees, recognize and value their contributions, and actively seek their ideas and opinions,” Gallup declares. It takes talent to be a great manager and selecting people who have this talent is important. Whether hiring from outside or promoting from within, businesses that scientifically select managers for the unique talents it takes to effectively manage people greatly increase the odds of engaging their employees. Gallup urges companies to treat the manager role as something that is unique and carries with it distinct functional demands that require a specific talent set. Coach managers and hold them accountable for their employees’ engagement. Gallup’s research has found that it is their managers who are primarily responsible for employees’ engagement levels. “Companies should coach managers to take an active role in building engagement plans with their employees, hold managers accountable, track their progress, and ensure that they continuously focus on emotionally engaging their employees.” Managers who are the most exceptional view employee engagement measurement as an essential element for great managing. By doing so, they gain a powerful framework to guide the creation of a strong, engaged workplace. Define engagement goals in realistic, everyday terms. “To bring engagement to life, leaders must make engagement goals meaningful to employees’ day-to-day experiences,” Gallup explains. “Describing what success looks like using powerful descriptions and emotive language helps give meaning to goals and builds commitment within a team.” To get the message across, Gallup says, make sure managers discuss employee engagement at weekly meetings, in action-planning sessions, and in one-on-one meetings with employees to weave engagement into daily interactions and activities, and eventually make it part of the workplace’s DNA. Let's block ads! (Why?)

Tax Reform’s Timely Gift for Employers

If you are an employer, allow me to present you with an early Christmas gift courtesy of a little-known provision of the 2017 tax reform law. The catch is, in order to qualify for it this year you have to act before Dec. 31. The boon consists of a tax credit for qualifying types of paid leave provided to full- and part-time employees. It is available to any employer, regardless of size, if you provide at least two weeks of paid family and medical leave annually for employees who have been with the company for at least 12 months. The paid leave must amount to at least 50% of the wages normally paid to the employee whose prior year compensation was at or below $72,000 for 2018. The credit is equal to 12.5% of wages paid to an employee while on leave for up to 12 weeks in a tax year for a purpose that is protected by the Family and Medical Leave Act (FMLA) and receiving 50% of what IRS calls “normal wages,” which it defines as not including overtime or bonuses. The credit increases by 0.25% for each percentage point by which the rate of paid leave exceeds 50% of normal wages, up to a maximum credit of 25% where a qualifying employee receives 100% of his or her normal pay while on leave. “Where an employer provides paid leave for both FMLA purposes and other purposes (such as vacation or personal leave), the written policy must designate the leave provided for FMLA purposes in order to qualify for the credit for such leave,” note attorneys Anne G. Batter and Sinead M. Kelly of the law firm of Baker McKenzie. For example, a paid maternity or paternity leave policy that provides additional paid leave (over and above vacation, sick leave or other paid time off) would likely qualify, they say. Get it in Writing Employers who already provide paid leave for an FMLA purpose should amend their written policies to meet the notice requirements by Dec. 31, which is required if they wish to claim the credit for any qualifying leave granted employees since Jan. 1, 2018 (as well as for 2019). Any employer will be eligible for the credit if it has a written policy in place that provides paid family and medical leave, satisfies the minimum paid leave requirements, and, if applicable, includes certain required “non-interference” language. The employer must include this “non-interference” language in its written policy if at least one qualifying employee is not covered by the FMLA. The non-interference language states that the employer will not interfere with, restrain or deny exercise of any right provided under the paid leave policy, and will not discharge or discriminate against any individual for opposing practices prohibited by the policy. Not complicated enough for you? According to the IRS notice, paid leave required by state or local law is not counted in determining whether an employer provides a rate of payment of at least 50% of an employee’s normal wages. In California, New Jersey, New York and Rhode Island, employers must provide 50% of normal wages on top of any state-funded amount to qualify for the credit. Did you get all of that? You may be asking why you haven’t heard of this before. The IRS did not get around to issuing the notice spelling all of this out until Sept. 24, and the deadline for accepting public comments on regulations was set for Nov. 23. Until the proposed regulations are issued, employers considering implementing a paid leave policy should familiarize themselves with this tax credit and analyze how the credit might impact their decision,” says attorney Arslan Sheikh of the law firm of Porter Wright Morris & Arthur. “Because the tax credit is available only for wages paid in 2018 and 2019, employers should consult their attorneys and/or financial advisors to determine whether instituting a paid leave policy merely to claim this credit is worth the cost,” Sheikh suggests. Let's block ads! (Why?)

Petroleum Refineries: Beware the Wild RAGAGEP

A vaguely-worded standard used by the Occupational Safety and Health Administration (OSHA) for petroleum refinery safety enforcement is now less of a threat to industry employers, thanks to an administrative review decision. The Occupational Safety and Health Review Commission sharply reduced the number of charges and dollar amount of citations leveled in 2010 against an Ohio refinery operated by BP Products North America, Inc. The charges stemmed from alleged violations of Process Safety Management (PSM) rules regarding highly hazardous chemicals, including 65 citation items contained in single willful citation. On appeal, an Administrative Law Judge vacated all but five of the citations and reduced the $2,870,000 penalty to $35,000. That decision was appealed by OSHA’s ultimate boss, the Secretary of Labor, and was upheld on Oct 1 by the OSHR Commission. The PSM standard was created by OSHA in 1992, but it wasn’t until 2007 that OSHA began to systematically inspect petroleum refineries as part of its Petroleum Refinery Process Safety Management National Emphasis Program (NEP). The most contentious issue in the BP case was the meaning of the term “Recognized and Generally Accepted Good Engineering Principles” (RAGAGEP), which is used but not defined by OSHA in the text of the PSM standard. Making matters worse, both PSM and RAGAGEP are vaguely worded, providing those charged with a ready defense when cited under them—and that defense was needed when OSHA pressed forward with a comprehensive enforcement program. “Many safety managers at refineries around the country were surprised at how easily OSHA was able to use the PSM standard to issue dozens of high-dollar-value citations by simply issuing multiple citations for each subsection of the standard,” notes attorney Christopher V. Bacon of the law firm of Vinson & Elkins. The Review Commission made it clear that the PSM standard is a performance-oriented standard—not a prescriptive one—and that OSHA cannot second guess an employer’s discretion in deciding how to comply, Bacon explains. “Simply because OSHA claims something is RAGAGEP doesn’t make it so. There can be multiple RAGAGEPs as long as companies can show that they engaged in a deliberative process to come up with the standard that they are applying.” Examples and a Warning One example: OSHA had taken the position that certain pressure relief valves could not have an inlet pressure drop that exceeded 3%. BP noted that the American Petroleum Institute had qualified this principle, holding that a valve’s inlet pressure drop could exceed 3% if an engineering analysis had been conducted, which BP had done. The commission also found that BP’s facility siting program—a program which assesses and addresses potential damage that a workplace explosion could cause to occupied buildings—had been reasonable and OSHA should not have second guessed the methodology used by BP for assessing risk and prioritizing remediation. While most refineries give considerable thought to the issue of facility siting today—especially since the BP Texas City Refinery explosion in 2005—they often fail to document their analyses and siting decisions, Bacon points out. “The first requirement of the PSM standard is that employers must compile awritten Process Safety Information (PSI) statement, but many don’t. It is this lack of documentation that gets refineries in trouble.” He says refineries also are often lax when it comes to documenting their compliance with RAGAGEP with respect to their relief systems. Refineries need to be able to document the standards that they are relying on, even if the refinery’s own engineers developed and implemented it, Bacon stresses. Refineries have also been surprised by OSHA inspectors who have taken the time to pore over dozens of Piping and Instrumentation Diagrams (P&IDs) and to issue a citation because one of the P&IDs was not up to date. According to Bacon, the OSH Review Commission should be looked upon by refinery operators as a good thing, as long as they have been diligent in preparing for the future. “This decision should be welcomed by any employer that already has a robust PSM program, even if a particular inspector takes issue with some of your analyses,” he says. “On the other hand, it is not going to help companies who lack PSI programs or who have not conducted a Process Hazard Analysis.” Let's block ads! (Why?)

MSHA Launches Vehicle Fire Suppression System Initiative

Recent truck fires at mining worksites—one of them fatal—caused the Mine Safety and Health Administration (MSHA) to launch a new fire suppression system initiative that includes an educational effort aimed at employers and an order directing agency inspectors to make these systems a priority in future inspections. MSHA discussed the new initiative during its Oct. 16 quarterly stakeholder conference call, taking note of the recent spate of accidents, including one that was fatal. One month earlier, a miner was burned when a fire broke out on the rock truck he was operating at a coal mine. At the time of the accident, the miner was hauling spoil material from the pit to the dump site. As he was positioning the truck at the dump site at the Bear Run Mine in Indiana, a bulldozer operator saw a fire near the engine compartment and operator’s cab. The bulldozer operator radioed the miner operating the truck. After stopping the truck, the miner evacuated but received burns as he traveled down the stairs which are beside the engine compartment. The miner was transported to a hospital and a burn center for treatment, but he died from his injuries five days after the accident took place. During the investigation, MSHA checked the truck’s manually-activated fire suppression system. Based on statements made during the investigation, the fire suppression system failed to function when it was activated. “A properly functioning fire suppression system may have saved this miner’s life,” MSHA said. About two weeks later, two more fires occurred. A fire also took place at the same mine on another rock truck of the same make and model. No one was injured, but again, based on statements, the manually-activated fire suppression system did not function when the drivers attempted to activate it. In yet another case, a non-injury fire also occurred on a hydraulic shovel. In that situation the automatic fire suppression system activated but it did not extinguish the fire. “It is the responsibility of mine operators to ensure that adequate and effective fire protection equipment, which includes fire suppression systems, is provided,” MSHA stressed. “Also, it’s the responsibility of mine operators and miners to ensure that fire hazards on surface vehicles are adequately eliminated and/or mitigated.” MSHA said its personnel will look at fire suppression systems on these types of surface mining vehicles when they visit surface mining sites. They will check critical portions of fire suppression systems and will discuss key requirements of proper installation and maintenance of these systems with managers and workers on site. The agency reminds operators that fully compliant systems adhere to the requirements in National Fire Protection Association (NFPA) 17 and 17A (Standards for Dry and Wet Chemical Extinguishing Systems), the system manufacturer’s recommendations, as well as the 30 CFR regulations. As part of the fire suppression initiative, the agency is stressing the importance of periodic and detailed maintenance, review of evacuation/egress methods, adequate task training for vehicle operators, and detailed review of the fire suppression system owner’s manual. MSHA also said that it wants operators to contact manufacturers when necessary and check their fire suppression systems to ensure they will operate in case of a fire. “If a fire does ignite, it is imperative that miners have a means to dismount equipment quickly and safely,” MSHA said. It encourages manufacturers of surface vehicles, as well as mine operators, to develop and install evacuation methods that allow a miner to stay away from areas of the vehicle where, historically, fires have started, including the engine and battery compartments and hydraulic hoses. MSHA has prepared a PowerPoint training presentation and a checklist that will be used by inspectors on enforcement visits and which also can be used by the mining community to help evaluate fire suppression systems. It will be posted on our website. Thorough pre-operational examinations and required maintenance are critical to finding and removing fire hazards related to combustible fluids, brake systems, electrical cables and connections, and other materials. “Adequate task training must be performed so equipment operators and mechanics will be able to maintain equipment, respond correctly to alarms, use fire suppression systems properly and safely dismount equipment in an emergency,” the agency said. In addition, it said mine operators should provide refresher training for their employees as needed. During the quarterly stakeholders call, MSHA officials also reviewed the agency’s Powered Haulage Safety Initiative and reiterated its importance, stating that over 50% of mine-related fatalities in 2018 involved powered haulage. The power haulage initiative is focused on large mobile equipment safety, seat belt usage and conveyor safety. The third of these topics—conveyor safety—is the current emphasis of the agency, with guarding, lockout/tagout and safe access during maintenance checks of particular interest, noted attorney Lauren M. Marino of the Ogletree Deakins law firm. In order to address this issue, MSHA has created brochures and other materials for inspectors and compliance assistance. Let's block ads! (Why?)

OSHA Stresses Trenching and Excavation Safety

On Oct. 1, the Occupational Safety and Health Administration (OSHA) officially kicked off its National Emphasis Program (NEP) targeting trenching and excavation. It’s not too hard to figure out why. Trenching and excavation work exposes workers to particularly dangerous hazards. According to the Bureau of Labor Statistics data, between 2011 and 2016 there were 130 fatalities occurring in trenching and excavation operations. The private construction industry accounted for 80% of those fatalities, and 49% of them occurred between 2015 and 2016. Of the private construction fatalities, 40 (38%) were at industrial places and premises; 39 (38%) were at private residences; and 21 (20%) occurred at streets or highways. OSHA’s long-standing focus on trenching and excavation violations has resulted in numerous high-profile penalties for companies, note attorneys Thomas Metzger and Sarah Squillante of the law firm of Littler Mendelson. Earlier this year, the agency announced proposed penalties in excess of $400,000 against a company for alleged exposure to trench cave-ins and other violations. OSHA also issued proposed penalties in excess of $250,000 against another employer after it found that employees were allegedly working without cave-in protection while working in a trench. “The issuance of citations and significant penalties is likely to continue as the agency refocuses its efforts toward reducing these types of hazards,” Metzger and Squillante say. In light of a recent resurgence in trenching and excavation fatalities and serious injuries, OSHA announced a renewed emphasis on these workplace hazards starting with a three-month period of education and prevention outreach that it kicked off on Oct. 1. In addition, OSHA said it will provide support for compliance assistance and inspection programs, create a national reporting system for all OSHA trenching and excavation inspections, and establish a requirement that each OSHA Area Office develop and implement outreach programs. To assist employers, the agency has issued new compliance guidance in response to the NEP. OSHA has an online resource for practical guidance on complying with the standards. Employers also should review OSHA’s Trenching and Excavation Quick Card, which was recently updated in advance of the NEP. Outreach programs will include providing compliance assistance material to excavation employers, permitting and other municipal organizations, industry associations, equipment rental organizations, water works supply companies, and major and local plumbing companies, OSHA reported. ‘Drive-By Inspections’ The NEP also requires OSHA area and regional offices to concentrate their enforcement resources on employers performing work involving trenching and excavation. Specifically, OSHA compliance officers will initiate inspections under the NEP whenever they observe an open trench or open excavation. OSHA-approved state plans are required to notify OSHA within 60 days about whether they intend to adopt policies and procedures identical to those in this instruction or adopt or maintain different policies and procedures. If a state plan adopts policies and procedures that differ from federal ones, it must identify the differences and may either post its policy on its website and provide the link to OSHA or submit an electronic copy to the federal agency. Regardless of whether a violation has been readily observed by OSHA inspectors, if trenching or excavation activity is observed, the NEP directs them to initiate an inspection, explain attorneys Aaron Wilensky and John F. Martin of the Ogletree Deakins law firm. “Worksites with trenching or excavation activity will be given a higher priority, provided an inspection would not interfere with other inspections deemed to be more important.” In addition, the NEP calls for inspectors to initiate inspections when they observe employers performing trenching or excavation work near sites that are being inspected for other reasons. Thus, if OSHA is at a worksite for a programmed inspection, compliance officers will also be looking for trenching or excavation work, Wilensky and Martin warn. “The NEP means that employers performing trenching or excavation work are subject to the dreaded ‘drive-by inspection.’ If an inspector happens upon an employer’s excavation, an inspection can be opened,” the lawyers explain. Wilensky and Martin believe this may run afoul of a string of court decisions requiring the agency to obtain an administrative warrant before conducting an inspection, either in response to specific complaints or because the site was selected on the basis of a general administrative plan derived from neutral sources. According to Wilensky and Martin “neutral sources” typically means either random selection or selection by relevant statistics that have no individual human component. Although this could ultimately fuel litigation directed at the new NEP, they advise employers to adhere to the new directive unless they are looking to be a test case. “As always, once OSHA begins an inspection, even if it is intended to be limited in scope, and the inspector notices any other hazards, those can be cited as well,” they point out. “Employers should also remember to make sure recordkeeping is up to date as well because an inspection will often result in a request for 300 logs.” Let's block ads! (Why?)