Author Archives: David Sparkman

Surprise CVSA Inspections Find 1,600 Brake Violations

The Commercial Vehicle Safety Alliance (CVSA) recently reported that its May continent-wide unannounced roadside inspection event scrutinized 10,358 commercial motor vehicles—primarily trucks—finding that 1,667 (16.1%) had brake-related critical violations that caused them to be put out of service until they could be corrected. When considering these numbers, it is important to keep in mind that the CVSA inspectors, primarily state police experienced at truck enforcement, don’t pick out the vehicles purely at random. Instead, they will run a line of trucks past them at a weigh station, for example, and pick out the ones that already “look bad and sound bad” for closer scrutiny. Entirely separate from this brake safety event is the pre-announced three-day event held each year by CVSA called International Roadcheck, where CVSA-certified inspectors conducted a 37-step inspection including examination of driver operating requirements and vehicle mechanical fitness. Roadcheck took place June 4-6, and the primary focus was steering and suspension systems. Fifty-five jurisdictions in the U.S. and Canada participated in this focused one-day brake safety inspection and enforcement initiative on May 15. Participation by law enforcement jurisdictions is voluntary and depends upon availability of staff and resources. Each participating jurisdiction captured and reported its data to CVSA. Truck brakes historically have been the main cause of out-of-service violations. As a result, checking brake systems and their components is always part of roadside vehicle inspections. The Federal Motor Carrier Safety Administration (FMCSA) found that more than half a million commercial motor vehicle violations in 2017 were related to brakes. According to FMCSA’s Analysis and Information Online 2019 calendar year data snapshot, as of June 28, 2019, out of 1.8 million inspections the top five brake-related violations were: ● Clamp or roto type brake out of adjustment totaled 86,296. ● Vehicles manufactured after Oct. 19, 1994, have an automatic brake adjustment system that fails to compensate for wear (45,594). ● Brake hose or tubing chafing and/or kinking (37,737). ● No or defective ABS malfunction indicator lamp for trailers manufactured after March 1, 1998 (37,343). ● Inoperative/defective brakes totaled 32,125. Where the Focus Is The 2019 inspectors also paid close attention to violations involving brake hoses/tubing, finding 996 units with chafed rubber hose violations and 185 had chafed thermoplastic hose violations. In addition, 1,125 were cited for violations of federal and Canadian-equivalent regulations included chafed rubber hoses and kinked thermoplastic hoses. “We all know how important a properly functioning brake system is to vehicle operation,” says Jay Thompson, CVSA president and a chief with the Arkansas Highway Police. “All components of the brake system must always be in proper operating condition. Brake systems and their parts and components must be routinely checked and carefully and consistently maintained to ensure the health and safety of the overall vehicle.” He stresses that brake hoses and tubing must be properly attached, undamaged, without leaks and appropriately flexible. Because they are such an important part of the braking system, the failure of hoses or tubing can cause problems for the entire braking system.” CVSA conducts brake-focused enforcement events, such as Brake Safety Day, to identify and remove commercial motor vehicles with dangerous brake issues from our roadways to reduce the number of crashes caused by or made more severe by deficient braking system performance. The organization also announced that it is holding another brake safety enforcement event this year called Brake Safety Week, scheduled for Sept. 15-21, at participating jurisdictions throughout North America. The week is an annual outreach and enforcement campaign designed to improve commercial motor vehicle brake safety. Vehicles with critical brake violations, or other critical vehicle inspection item violations, will be restricted from traveling until those violations are corrected. Vehicles without critical vehicle inspection item violations are eligible to receive a CVSA decal indicating that the vehicle passed inspection. In the 14 jurisdictions using performance-based brake testers (PBBT), vehicle braking efficiency will be measured using that tool. PBBTs determine overall vehicle braking efficiency or the total brake force over the effective total gross weight. The minimum required braking efficiency for trucks or combinations with gross vehicle weight rating above 10,000 pounds is 43.5% under U.S. federal motor carrier safety regulations and serves as the CVSA North American Standard Out-of-Service Criteria. Brake Safety Day and Brake Safety Week are inspection, enforcement, education and awareness initiatives that are part of the Operation Airbrake Program sponsored by CVSA in partnership with FMCSA and the Canadian Council of Motor Transport Administrators. CVSA offers assistance to motor carriers in the form of what it calls an inspection “cheat sheet” to help them prepare in advance for these events. Let's block ads! (Why?)

MSHA Seeks Comments on Refuge Chambers Policy

The Mine Safety and Health Administration (MSHA) has requested public comments on the Program Policy Letter (PPL) it issued regarding escape ways and refuges used in underground metal and nonmetal mines where miners may need to shelter in place during an emergency. The refuge policy letter is being issued for public comment prior to becoming final in spite of the fact that the PPL is not to be considered a formal rulemaking with all of the added administrative steps that entails, MSHA notes. “However, MSHA believes the PPL is necessary to address significant safety issues regarding the placement of a refuge in a location that provides miners access if they cannot escape,” it says. A copy of the MSHA letter and request for comments is available in the Federal Register. Comments are due no later than September 27, 2019. Federal regulations require escape ways be created in underground metal and nonmetal mines that will allow miners to escape in emergencies, and when they cannot escape, the standard requires refuges to enable miners to shelter safely in place until they can be rescued. MSHA says it determined that this guidance is needed due to questions it received from mine operators in regard to refuge chamber placement. MSHA says that because the guidance is expected to raise novel legal and policy issues, it is seeking public comment on the letter’s contents. The PPL attempts to clarify the placement of refuges required by the standard. MSHA says in the letter that the standard recognizes two exceptions to the requirement that underground miners be provided at least two separate escape ways from their working places to the surface. First, miners must be provided a method of refuge while a second escape way is being developed. Second, during exploration or development of an ore body, the second escapeway is recommended but not required. MSHA interprets these two exceptions to both to mean that if, in either of these situations, miners have only one escape way from their working place, then they also must have access to a refuge. This refuge should be located near the miners to allow them to promptly and reliably enter the refuge if they cannot escape. In determining an appropriate distance, MSHA considers mine-specific factors in each case. For example, it may not be practical for most working places near the portal (within 300 feet) in a horizontal configuration to have a refuge. However, MSHA believes that, in most cases where a refuge is located, for example, 1,500 feet from miners on a relatively level surface, it would be close enough to provide the protection the standard intends. Data System Upgrade The agency also announced that it has completed a major upgrade to its primary data system—the Mine Data Retrieval System (MDRS)—with the intention of bringing increased functionality and more intuitive navigation to this system, which is widely used by mine operators. The MDRS offers a variety of tools to help operators monitor their compliance with MSHA regulations. It offers access to comprehensive mine location, status, ownership, employment, production, accident/inspection/violations history and health sampling data. Additionally, MSHA’s compliance assistance calculators—Pattern of Violations (POV), Significant and Substantial Rate, and Violations per Inspection Day—can be accessed using it. The MDRS gateway is the most visited page on the agency’s website, www.msha.gov, MSHA reports. “The new Mine Data Retrieval System will simplify the process for operators and others to obtain key data points and compare the safety of their mines with industry standards,” says David G. Zatezalo, assistant secretary of the U.S. Department of Labor and head of MSHA. All of the standard reports previously provided are still available, but now MSHA-wide statistical reports providing real-time data are also tied to the MDRS, the agency explains. “Furthermore, the new system provides advanced search capabilities where users can select entire industries, multiple mines, and ownership groups,” MSHA says. The platform also allows users to export datasets into either Excel or PDF for further analysis. According to the agency, the upgrade has been in the works for more than a year and was guided in part by input that was obtained from stakeholders, including mine operators and industry associations, who participated in three webinars the agency held. A beta version was run side-by-side with the original platform on the agency homepage while MSHA gathered feedback and refined the system, MSHA reports. In addition, the agency says it will continue to seek feedback and improve the MDRS to assist all stakeholders and the general public in monitoring the safety and health of the nation’s miners. MSHA describes the new MDRS as the exclusive gateway to this real-time data, posted prominently on www.msha.gov and available through this link. Let's block ads! (Why?)

OSHA Steps Up Use of Drones for Inspections

OSHA is stepping up its use of drones to inspect worksites. As it does so, the practice places employers in an uncomfortable position between the proverbial rock and a hard place. Should you give OSHA permission to use drones on your property not knowing what they will find, or withhold consent and look like you have something to hide? We first reported on the practice when the news surfaced late last year that the agency had put procedures in place for the use of these unmanned craft as another tool in the inspection process. OSHA reportedly used drones with cameras to conduct at least nine inspections of employer facilities in 2018, and has conducted an additional nine such inspections so far this year. As of now, OSHA has used drones only with employers’ permission, at worksites where an accident occurred and the area was considered too dangerous for inspectors to enter (such as collapsed buildings, chemical fires and oil rigs). We can expect greater use of drones for this purpose in the future, according to Wes Gerrie, an attorney with the law firm of Goldberg Segalla LLP. “With the increased prevalence of drones in day-to-day life, one can only expect that number to increase.” Currently, it is up to the OSHA regional administrators to determine whether their region will act to institute a drone compliance inspection program. Any region wishing to do so must establish a regional drone program manager and organize a drone inspection team consisting of a remote pilot in command, visual observer and a safety monitor. The visual observer must be an OSHA employee and the pilot makes all flight determinations. The program must also comply with all Federal Aviation Administration (FAA) regulations, including strict registration, certification and reporting. Finally, the pilot must always maintain line-of-sight with the drone and the team must notify all people on-site before a flight. One of the most obvious tensions created by these procedures arises when an OSHA drone inspection runs up against a business’s protections against unauthorized searches, Gerrie points out. “While such an issue will likely be heavily litigated in the future, OSHA currently requires employer’s consent before conducting a drone compliance inspection.” OSHA currently is seeking a blanket public certificate of waiver/authorization from the FAA to use drones anywhere in the country without requiring consent, Gerrie reports. But at present, the agency can only conduct a drone compliance inspection with the consent of the employer, keeping some control within the hands of the business entity subject to the inspection. Consent a Double-Edged Sword At this time, if an employer consents to drone inspections by OSHA, it should continually monitor the drone flight, and make sure that compliance takes place in regard to both the FAA and OSHA’s own policies and regulations, and that the consented-to flight plan is consistently adhered to. “Notably, an employer can refuse such an inspection,” Gerrie says. “However, as a practical matter, it may create the appearance of impropriety and such a decision should be considered carefully.” If you are approached by OSHA regarding a potential drone inspection, Gerrie stresses that it is important to consider these points: ● The definition of “in plain view” is greatly expanded by drone use. Where previously, an inspector may have to look through a fence or even from outside the property for an apparent violation, a drone can reach and see other areas, making a larger portion of the worksite available for inspection. ● While denying a request for drone inspection may create the perception of a compliance issue, in serious injury cases (such as a loss of limb or fatality), it may be important to consider denying the request until the safety officer, legal counsel and senior management can get on site. ● Drones flying over a worksite may inadvertently capture trade secrets or Environmental Protection Agency (EPA) violations, which may be shared between agencies or be available via Freedom of Information Act requests. ● Before consenting, an employer should consider the site itself and whether a drone flight would be safe or risk causing damage to equipment or work products. ● An employer can work with OSHA on developing a specific flight plan and get copies of the data collected. ● During a typical OSHA inspection, an agent of the employer usually accompanies the inspector, which is not possible during a drone flight. Given these considerations, Gerrie suggests that the conventional approach of simply allowing OSHA to inspect a site may be turned on its head in favor of an employer requesting that OSHA provide a warrant first. “Should the employer provide consent, it is extremely important that the employer and OSHA agree upon a specific flight plan and that each of the above bullet points are discussed and considered within the flight plan,” he recommends. “Further, it may be prudent to consult with legal counsel when agreeing to a specific flight plan.” Let's block ads! (Why?)

Benefits Grow in Full Employment Job Market

In this era of full employment, employee benefits remain a powerful tool for employers to reach out to attract new recruits and retain their current workforce, and more of them are delving into new and innovative benefits. Those are the findings of the annual employee benefits survey conducted by the Society for Human Resource Management (SHRM). Researchers found that companies also are conducting extensive research on their specific employee demographic to put together unique benefits packages that resonate with their employees’ needs and stages of life. “The talent market is tight. Wage growth has begun to occur, but employers wary of economic uncertainty remain cautious about increasing wage and salary compensation, and some choose to diversify benefits offerings in lieu of paying higher wages,” the SHRM report notes. “Finding the right combination of benefits that appeals to a multigenerational workforce can be a challenge,” admits Alex Alonso, chief knowledge officer for SHRM. “But if you know a good portion of your workforce are Baby Boomers with aging parents, you might choose to beef up your caregiving benefits and flexible scheduling policies. On the other hand, if you have a young demographic, offering benefits like student loan repayment could be the way to go.” Company-provided student loan repayment benefits have risen from 4% in 2018 to 8% this year. SHRM says this benefit category is expected to gain additional traction if Congress passes pending federal legislation that is designed to encourage it. More than half (56%) of employers also offer tuition assistance to employees. These are more examples of how employers are choosing to tailor benefits to target different age cohorts. Employers recognize that many workers are concerned about their financial futures, and provide services to help employees with financial decision-making. Nearly all organizations offer some kind of retirement plan, but 93% offer traditional 401(k) plans, a slight increase over the last five years, and 74% of employers match employee 401(k) contributions at some level. Traditional defined-benefit retirement plans, already uncommon in 2015, have continued to decline over the last five years. Employers were more likely to increase offerings in all benefits categories than to decrease offerings. No more than 3% of organizations decreased benefits in any category. Health-related and wellness benefits saw the greatest increases across the employers surveyed, with 20% of employers indicating they boosted offerings in those areas. Health Insurance Conundrum Health insurance, one of the more traditional benefits, is becoming more expensive, driving employers to diversify into other benefit areas. “Healthcare costs are eating up a good portion of employer benefits budgets, so employers aren’t choosing to make many new changes,” Alonso explains. “It’s really about incorporating the higher healthcare costs and doing what you can with the rest of your benefits budget to meet employees’ needs.” According to the Kaiser Family Foundation, average family health insurance premiums have increased twice as fast as workers’ earnings and three times as fast as inflation since 2008. SHRM says organizations continue to look for ways to control healthcare costs, with 85% offering a Preferred Provider Organization (PPO) insurance plan, while High Deductible Health plans (HDHPs) linked with health savings accounts (HSAs) and health reimbursement arrangements (HRAs) continue their growth, rising by 10%. More than half (59%) of organizations report at least one HDHP offering. Health savings accounts, which can only be offered along with a HDHP, are available in 56% of organizations surveyed. Healthcare flexible spending accounts remain popular, offered by 68% of employers this year, although company-provided dependent care flexible spending accounts have declined 8% since last year. When it comes to innovation, telemedicine and telehealth increased by 10% within the past year. In addition, telemedicine benefits have increased from 23% in 2016 to 72% this year. Specific services and procedures (such as bariatric surgery and forms of alternative medicine) are becoming more widely covered by insurance plans, but as organizations look to control healthcare costs, these benefits may see future declines, according to SHRM. It’s a different story for wellness benefits, which are on the rise. Programs focused on particular health conditions (24%) or health screening (31%) have seen declines as insurers have moved into this space. However, benefits like quiet rooms (21%) and fitness activities (30%) have seen increases. Standing desks in particular continue to rise in popularity with 60% of employers offering them, compared to just 25% just five years ago. Focus on Families Family-friendly benefits also are increasing in popularity. A quarter of organizations allow parents to bring children to work in an emergency. Other childcare benefits are uncommon, and show little change over the past five years, including childcare referral service and subsidized or nonsubsidized childcare centers and programs. Worksite lactation/mother’s rooms are offered by 51% of employers, up 16% from 2015. The number of employers offering family leave above the time required by the federal Family and Medical Leave Act has increased by 6%. While paid leave for new fathers has gone up only slightly since 2018, it has seen a steady rise over the past five years (up 14%) and is now within 4% of paid leave for new mothers, the most common type of paid leave for new parents. Elder care benefits have become slightly more common over the last five years, but are still relatively rare, SHRM reports. The most common elder-care benefit—referral service—is available at only 10% of the organizations reporting. Supplemental insurance offerings remain stable. The vast majority of employers (83%) offer accidental death and dismemberment insurance, 71% offer long-term disability, 61% short-term disability and 27% accident insurance. Flexible working benefits continue to rise in popularity, and as a result telecommuting of all types is increasing, as are most types of flexible scheduling. Telecommuting on a part-time basis is now offered by 42% of employers. “Employees in different life stages may want and need different benefits. While employers cannot afford to offer the best of every benefit, they can ill afford to under-invest in the benefits that are most important to their employees,” SHRM observes. “The diversity of available benefits shows that organizations understand that they must be creative in allocating resources toward those benefits that have the greatest impact on each employee and complementing high-cost benefits with low-cost offerings that appeal to employees with a variety of needs.” Let's block ads! (Why?)

Court Strikes Down NY Harassment Arbitration Ban

A federal court has blunted one of the primary legal weapons deployed in some states against sexual abuse in the workplace by striking down a New York state law that had banned employee contracts that required arbitration of sexual harassment claims. Federal district court Judge Denise Cote ruled that New York’s law, which went into effect in July 2018, is preempted by the Federal Arbitration Act (FAA), a law passed by Congress in 1925 that was designed to encourage the use of arbitration and reduce the number of lawsuits clogging America’s court systems. This June, the New York State Senate and Assembly passed another bill, this time expanding the prohibition of arbitration involving sexual harassment disputes to include a ban on arbitration for any kind of discrimination or harassment claims. “Although Judge Cote didn’t formally rule on the more general, brand-new bar on arbitration of all discrimination claims (harassment or not), she observed in a footnote that the more general bar suffers from the same problem and is probably preempted by federal law, too,” comment attorneys Steven Nevolis and Mark Konkel of the law firm of Kelley Drye & Warren. The judge’s decision regarding the sexual harassment law is likely to result in a “failure-to-launch” of the arbitration prohibitions in this latest round of legislation as well, the lawyers say. “But for now, here’s the unsettling message for employers navigating the ever-shifting landscape of discrimination law obligations: the new provisions of New York law barring mandatory arbitration of all employment discrimination claims will be struck down, but for the time being, you can’t count on it.” In the case decided by the federal district court, plaintiff Mahmoud Latif signed an arbitration agreement when he accepted a job with Morgan Stanley, the global investment bank and financial services company. The arbitration agreement specifically stated that it “shall be governed by and interpreted in accordance with” the FAA. Latif alleged that he was subject to discrimination, a hostile work environment and retaliation, all in violation of federal, state and city law. Specifically, he alleged that he was the target of inappropriate comments regarding his sexual orientation, inappropriate touching and offensive comments about his religion. He also claims retaliation by his employer because he was terminated shortly after reporting these events to the human resources department at Morgan Stanley. He filed claims under federal and state antidiscrimination laws and the company filed a motion to compel arbitration, per the arbitration clause in his employment agreement. Latif did not dispute that his other claims were subject to arbitration but he argued that the sexual harassment claim could not be subject to arbitration under New York law. Broader Implications The judge disagreed, finding that the sexual harassment claims were subject to mandatory arbitration because state law was inconsistent with the FAA. She declared that the language of the federal law is clear: When a state law prohibits the arbitration of a specific type of claim (in this case, a sexual harassment claim), then that state law is “displaced by the FAA.” In her decision Judge Cote took that argument one step further to suggest that New York’s recent legislative amendment passed in June that prohibits mandatory arbitration in regard to all discrimination claims will likely meet the same fate when it ends up being adjudicated under the FAA. While her decision is good news for employers in New York State, Nevolis and Konkel say they shouldn’t take Judge Cote’s decision as final quite yet, especially since it is likely to be appealed to a higher court. “No one can blame employers who want to rush to their arbitration agreement template and reinsert sexual harassment claims as a covered claim,” they note. “However, since the Latif decision is only a trial court decision, and there is likely to be an appeal to the Second Circuit [U.S. Court of Appeals], employers should exercise caution.” Those employers who wish to revise their arbitration agreements should be prepared to engage in a similar court battle over the legal validity of arbitrating sexual harassment claims, the attorneys warn. “Depending on whether this battle will be in state or federal court, and depending on the judge who decides the matter, employers may not see the same result as Latif. In that case, the employer will then have to continue onto litigation in court.” However, in the view of attorneys Joseph Cartafalsa and Christopher Murray of the Ogletree Deakins law firm, if Judge Cote’s decision eventually is upheld on review, it also could have ramifications beyond the borders of New York State by undermining similar arbitration bans that were adopted by other states in response to the #MeToo movement, including Maryland, New Jersey, New York and Washington State. Although employers may want to review their arbitration agreements to ensure they specifically invoke the FAA, they also need to take into account that certain provisions of the law make it clear that it does not apply to certain kinds of workers, the attorneys point out. In January, the U.S. Supreme Court in a unanimous decision confirmed that the FAA does not cover employees and independent contractors who qualify as transportation workers. The law specifically excludes arbitration clauses from “contracts of employment of seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce.” Cartafalsa and Murray stress, “Businesses using arbitration agreements with employees and/or independent contractors who could be classified as transportation workers may want to consider whether to invoke a state law and, if so, which state’s law.” Let's block ads! (Why?)

OSHA Issues Standards Improvement Final Rule

A catch-all rule making changes in several regulations was issued by the Occupational Safety and Health Administration (OSHA) as part of its ongoing Standards Improvement Project (SIP). Going into effect July 15, the updated regulations generally simplify employer efforts both in complying with the agency’s requirements along with determining how to achieve that compliance. For example, the rule replaces 31 pages of regulatory text on how to manage hazardous chemicals in the construction industry with a cross reference to an identical standard for general industry. “Even with OSHA’s emphasis on regulatory simplification, however, there are several key requirements that employers should closely consider to ensure continued compliance with OSHA standards,” warns attorney Adam R. Perkins of the law firm of Littler Mendelson PC. Among them are the following. Hearing Loss Reporting The final rule modifies OSHA’s requirement for reporting work-related injuries with regard to determining and reporting work-related hearing loss. Previously, employers were excused from reporting an employee’s hearing loss as a work-related injury when a physician or other licensed healthcare professional has determined the hearing loss neither is work-related nor was significantly aggravated by occupational noise exposure. Until the recent final rule, however, the reporting requirement did not expressly set out any standards for how such medical professionals may go about ruling out work-relatedness. With this final rule, OSHA has now made explicit that medical professionals must use OSHA’s general standards rules for determining the work-relatedness of an injury, in the process for determining whether hearing loss is work-related. 911 Emergency Services In the final rule, OSHA also updated requirements related to availability of 911 emergency services. When OSHA first promulgated the provision in 1979, it simply required the posting of phone numbers for physicians, hospitals and ambulances in areas where 911 services were unavailable. However, with 911 services now available almost everywhere across the United States, OSHA in the SIP rulemaking identified a different problem. When a caller dials 911 on a landline phone, it is customary for the 911 dispatcher to automatically be provided the caller’s location, which can greatly assist in pinpointing where medical services need to be sent. Unfortunately, such location-services technology is not yet as ubiquitous on wireless phones. As a result, particularly in distant worksites that lack landline telephones, in the event a caller dials 911 on a wireless phone, neither the caller nor the phone being used might be able to tell the dispatcher where exactly the call is coming from. Under OSHA’s update employers in worksites that have 911 services available, but lack readily available landline telephones, must post in a conspicuous location either the worksite’s latitude and longitude, or alternatively, other location-identification information that communicates effectively to employees the worksite’s location. “In light of this revision, employers that field employees in out-of-the way worksites should ensure they provide those employees, whether on a bulletin board or another widely trafficked part of the worksite, information on precisely where their site is located,” Perkins urges. Battling Cotton Dust One modification is especially significant for employers whose workers are exposed to cotton dust. Because exposure to cotton dust creates a risk of developing the respiratory disease byssinosis, OSHA has for a long time enforced standards for medical surveillance to determine whether employees exhibit symptoms of that disease. One problem is that those standards have not been significantly updated since they were enacted in 1978. As a result, the final rule is designed to bring the medical surveillance requirements into the present. Specifically, it updates pulmonary function testing requirements based on multiple recognized authorities. Perkins stresses that employers expressly covered by the rule should make sure that their own testing criteria adhere to the new standards. Easing Regulatory Burdens Perkins also says it is worth noting that several parts of the new rule increase employer flexibility or otherwise generally reduce regulatory burdens. One such instance concerns OSHA’s standards involving employers providing chest X-rays to their employees. Not only has OSHA eliminated the requirements for periodic chest X-rays associated with employee exposure to certain chemicals (due to there being no discernable benefit in reducing either lung cancer risk or mortality), but it also has allowed employers the flexibility to choose digital rather than analog chest X-rays, as well as greater flexibility in the size of X-ray films, regarding exposure to a larger subset of chemicals. Another example concerns lifelines used standalone as well as with safety belts and lanyards, which previously had to supply a minimum of 5,400 pounds in breaking strength. With improvements in testing methodology, lifelines now only have to supply at least 5,000 pounds of breaking strength. Finally, as part of the federal government’s ongoing effort to reduce unnecessary use of Social Security numbers in agency systems and programs, Perkins points out that OSHA also has chosen to delete SSN-inclusion requirements from 19 different standards. The full publication containing the SIP final rule can be found here. Let's block ads! (Why?)

How to Handle Environmental Release Investigations

Any kind of environmental release at one of your facilities creates the potential for distracting regulatory investigations, stinging fines and costly litigation. Some of that can be ameliorated by conducting the right kind of internal investigation of a leak immediately after it occurs. Internal investigations may be driven by a company’s desire to identify the root cause of an incident, verify an unconfirmed allegation, be a responsible corporate citizen, address liability concerns, or take remedial measures to prevent similar incidents from reoccurring, among many other reasons. “These incidents can result in governmental enforcement actions, third-party civil suits, individual liability and significant reputational damage, so another key purpose of an internal investigation is often for the company to obtain legal advice based on the investigation findings,” says attorney Paul Drucker of the law firm of Barnes & Thornburg LLP. Although you want to conduct such an investigation as swiftly as is practical, it is necessary that you know all of the steps that need to be taken and bases touched to avoid many of the pitfalls that can result from not taking sufficient care, Drucker cautions. Keep in mind that an environmental release is broadly defined as any spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping, disposing or migration of pollutants or hazardous material into the environment, and can include abandonment or discarding of barrels and containers. Before any incident occurs, Drucker recommends creating a written policy governing these kinds of internal investigations. These policies often describe what type of incident or level of risk triggers an investigation, how the investigation will be performed, and how the investigation team should be selected, among other things. “Even if a policy is in place, it may not definitively address the particular situation, in which case decisions will have to be made about whether the written policy should be rigidly followed or simply considered as one factor in structuring the investigation,” he says. After an incident occurs, Drucker also urges companies take certain essential steps to reduce stress and avoid the potential pitfalls that can arise. These are embedded in a carefully-wrought plan for everyone from corporate leadership to lower level staff to follow. Early Decisions Critical Decisions made at the start of an internal investigation into an incident or allegation of noncompliance are critical for performing a thorough, high-quality investigation that addresses salient issues while ensuring appropriate protections are in place, he argues. “Taking time to ask the right questions—and understanding the answers—is essential in this complex area of environmental law.” Prepare a written investigation plan that includes a summary of the incident being investigated, the purposes of the investigation, the identity of who is managing and directing the investigation, and other members of the investigation team. The plan also should cover the components of the investigation (such as employee interviews, records review and technical testing), the timeline of the investigation, and how the findings will be reported. This plan will likely need to be approved by the control group of executives at the company to whom the findings will be reported. You also need to be prepared to make updates to the plan during the investigation if necessary. Hold a kickoff meeting with the investigation team to discuss the investigation plan, address issues of legal privilege and make decisions regarding the schedule and path forward. Drucker adds that periodic team meetings also may be beneficial during the course of the investigation. Prior to witness interviews by legal counsel, determine if the “Upjohn warning” will be provided to these employees. This warning language clarifies that counsel is representing the company and not the individual employees, and that the company can waive the attorney-client privilege. Also consider whether it is appropriate to retain “pool counsel” for employees being interviewed. Pool counsel attends the investigatory interviews, answers employees’ questions about the process, and identifies circumstances where employees may need to retain separate counsel based on their involvement in the incident. Master the available facts and data at the outset of the investigation, Drucker advises. Often, the investigation team will conduct a preliminary inquiry to identify information sources and witnesses the team will want to interview. Similar to preparing for a deposition, the investigation team may want to develop an outline interview addressing the most important issues, questions and documents to review with witnesses as well as allowing free-form discussions about the incident. Should Privilege Apply? Should it be a legally privileged investigation, a non-privileged investigation, or should both types of investigations be conducted to cover different subjects related to the incident? Drucker says a privileged internal investigation may be preferable because the privilege can later be released if desired. But that does not cut both ways; a clearly non-privileged internal investigation cannot be made privileged later. In addition, to establish and protect a legally privileged investigation, the investigation must be structured, performed and reported in a certain manner throughout its course, he explains. If the intent is to protect the internal investigation as privileged, even if the privilege is later released, you will require the use of the right kind of qualified legal counsel. “The strongest case for maintaining privilege is where outside counsel manages and directs the investigation,” Drucker points out. He says the options to consider when deciding who will manage and direct an internal investigation include: ● Outside counsel who is not consistently retained by the company for ongoing legal work. ● Outside counsel who does perform regular legal work for the company but can nevertheless remain objective and independent. ● In-house counsel who makes it clear they are acting in the role of the company’s attorney and will not make business or management decisions. ● An investigator or technical expert, from either inside or outside the company, retained by counsel to perform the investigation for the purpose of providing legal advice to the company. “Internal investigations, however, are often urgent, sensitive and distressing for the affected company and its employees. Experienced counsel can help address these concerns through a properly managed investigation which seeks the truth while being cognizant of the practical and legal issues involved,” Drucker stresses. “A properly performed internal investigation can help businesses mitigate the negative consequences of an environmental incident or allegation of wrongdoing as well as prevent reoccurrence,” he adds. “It should be no surprise that many sophisticated business entities require internal investigations when an incident or allegation with environmental implications arises, even if not mandated by law or agency order.” Let's block ads! (Why?)

Court Overturns Mine Examination Rule

A three-judge panel of the U.S. Court of Appeals for the District of Columbia overturned a Mine Safety and Health Administration’s (MSHA) rule issued last year governing examination of mines before miners begin work, declaring that it would make working conditions less safe than they were under the rule it replaced. The panel of judges agreed with several unions who had challenged the 2018 rule, asserting that it violated the 1977 Federal Mine Safety and Health Act, which prohibits MSHA from issuing any regulation that would reduce the protection afforded miners by an existing mandatory health or safety standard. The rule had gone into effect on June 2, 2018, and included two major changes to a different rule that MSHA had issued in 2017. Under the newer rule, examinations could occur before or at the same time that miners begin work, and mine operators could exclude from their records any adverse conditions found during the examination that were promptly corrected. Like so much else that happens in Washington’s welter of agencies and their administrative admixture, the history of the rule is complicated (if not always alliterative). In this case, it all began in the dog days of summer in 2016, when the Obama administration MSHA issued a proposed rule that would replace the existing workplace examination standard applying to metal and nonmetal mines. After the usual notice-and-comment period for a federal regulation, the final rule was published on January 23, 2017, and was supposed to take effect on May 23, 2017. However, the new Trump administration MSHA later chose to delay the new rule’s effective date until October 2, 2017, while the agency used that time to re-examine the standard. The original iteration of the rule added the direction that workplace exams must take place before miners begin work and that operators “promptly” notify miners of adverse conditions found, record any such adverse conditions, and record the subsequent corrective action taken by the operators. After the delay but before the 2017 rule could become effective, MSHA announced two substantive changes. One permitted workplace exams to occur either before work began or as miners began work. The second change exempted from the recordkeeping requirements any conditions that the mine operator promptly corrected. With those two changes, the 2017 rule became the “2018 rule.” “MSHA explained that the ‘as work begins’ option would give operators more flexibility to schedule exams and be as protective of miners as the 2017 rule,” notes attorney Lauren M. Marino of the law firm of Ogletree Deakins. “Moreover, MSHA explained that the ‘promptly corrected hazards’ recordkeeping exception would incentivize operators to correct hazards immediately because, if a hazard was corrected, it need not be recorded.” An immediate court challenge was filed by the United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, AFL-CIO/CLC, and the United Mine Workers of America International Union arguing that the 2018 amendment violated the 1977 Mine Act’s no-less-protection standard. In vacating the 2018 amendment and reinstating the 2017 rule, the Appeals Court panel found that the 2018 changes did indeed violate the no-less-protection provision relative to the 2017 rule. The judges found that because it “does not allow for notification before exposure” which “allows miners to work in an area before the examination is completed, there is the likelihood that miners may be exposed to an adverse condition before it is discovered.” The court rejected the agency’s assertion that the 2018 changes provided no less protection than the 2017 rule, and held that MSHA relied on a “non-existent notification-before-exposure duty” which cannot be reconciled with factual findings that MSHA made in support of the 2017 rule. In addition, the judges rejected MSHA’s justification for the 2018 rule recordkeeping revision, stating MSHA had provided no basis for its conclusion that the supposed benefits will equal or exceed those stemming from the 2017 rule. It is possible that MSHA could choose to appeal the panel decision—which was decided on a 2-to-1 vote—to the full DC Circuit. But even if it doesn’t, don’t expect the saga to end, point out attorneys Patrick Dennison and Arthur Wolfson of the Fisher Phillips law firm. A challenge to the 2017 rule that had been brought earlier by mine operators is currently pending in the Eleventh Circuit Court of Appeals. That challenge had been stayed pending the outcome of the unions’ challenge to the 2018 rule in the D.C. Circuit. Margaret S. Lopez of Ogletree Deakins also observes that even if MSHA does seek further review of the Appeals Court panel decision, it is possible that the agency could choose to take other actions short of immediate enforcement of the 2017 rule. “If MSHA follows the same process it did previously on implementing the workplace examination rule, mine operators could expect the agency to phase in enforcement over time, while providing operators further information on what will be required and time to adjust their workplace exam program to the new requirements,” she says. Let's block ads! (Why?)

Employers Should File Lockout/Tagout Comments

Employers subject to the federal Lockout/Tagout (LOTO) rules should take advantage of the opportunity to comment on planned revisions of the standards or face enormous potential costs down the line, several attorneys warn. The Occupational Safety and Health Administration (OSHA) issued a Request for Information (RFI) in May seeking input on the agency’s planned revision of the LOTO standard. OSHA’s current rules cover servicing and maintenance of machines and equipment where unexpected energization or start-up of the machines or release of stored energy could harm employees. “By the time the agency issues a formal proposal, it is likely to have already made most of the critical decisions and it is generally extremely difficult to convince the agency to make a major change in direction at that point in the process,” warn attorneys Lawrence Halprin, Manesh Rath, Javaneh Nekoomaram and John Gustafson of the law firm of Keller and Heckman LLP. “Unless employers fully engage in this proceeding, they may find that the final outcome of this initiative imposes huge additional costs in the form of retrofits or restrictions on current practices and does not provide the expected clarification.” According to the RFI, the agency seeks information in two areas where modernizing the LOTO standard could promote worker safety. One of these is the use of reliable control circuit type devices in lieu of energy isolation where they are “at least as safe.” The second is in regard to the expanding use of robotics, in many cases into working environments that have never seen them before, like warehouses and fulfillment centers. The objective is to clarify what measures—short of full energy isolation—provide effective protection to employees performing maintenance and servicing activities, and its application to minor servicing activities and testing and positioning activities. The rulemaking could be helpful for employers who already use reliable control circuits to prevent unexpected start-up or release of energy from energized equipment, and who may be able to avoid the LOTO standard requirement for de-energization/energy isolation, the attorneys say. “This initiative should eliminate the current uncertainty as to whether the measures they currently use are legally adequate. It would also allow machinery manufacturers to explicitly embrace the use of their machinery in this manner. It may also provide greater flexibility.” they add. “For those employers who would like to take advantage of this technology for the first time, and for those employers who would like to expand their use of this technology to control hazardous energy while performing maintenance and servicing activities, this initiative provides a golden opportunity to educate OSHA on the appropriate uses of this technology. It would also encourage machinery manufacturers to seek other opportunities for the application of this technology.” High Cost of Noncompliance Employers must be in compliance and know how to adhere to a complex set of LOTO regulations. Not having a thorough knowledge and applying daily safety measures can lead to serious injuries and death. Craft workers, electricians, machine operators and laborers are among the three million workers who service equipment routinely and face the greatest risk. Failure to control hazardous energy accounts for 10% of the serious accidents in most industries. Fatalities and serious injuries are not uncommon. Workers injured from exposure to hazardous energy lose an average of 24 workdays for recuperation. The Keller and Heckman lawyers argue that one of the biggest challenges OSHA faces is forging new regulations dealing with newer technology designed to effectively protect workers from hazardous energy sources while avoiding the addition of significant new burdens. Decisions by courts and the OSH Review Commission recognize that when reliable control circuits can effectively prevent unexpected start-up or release of energy from energized equipment, the LOTO standard does not apply. Under current law, OSHA has the burden of proving that the use of control circuits does not prevent unexpected start-up or release of hazardous energy. However, it seems clear that OSHA plans to overturn current law by amending the LOTO standard, the lawyers say. They believe OSHA will propose eliminating the eight uses of the word “unexpected” from the current LOTO standard so that all energy control measures will be subject to it. The LOTO standard must be amended to recognize the broader use of reliable control circuits as an alternative energy control measure, they say. OSHA’s current interpretation limits the use of control circuits instead of energy isolation to exceptions for “minor servicing activities” and “testing and positioning activities.” For both OSHA and employers, one of the biggest challenges is defining and authorizing expanded use of reliable control circuits in a way that is understandable to OSHA personnel, employers and employees. This is why the agency seeks information about how the devices are used, including the types of circuitry and safety procedures being used and limitations of their use. In revising the standard, it appears that OSHA will say using reliable control circuits is an exception to the general rule, and if an employee could be exposed to hazardous energy without regard for existing control measures, the LOTO standard applies. Control measures would be considered adequate only if they satisfy the requirements of the amended standard. “This would dramatically shift the burden of proof from OSHA’s current burden of showing a potential for unexpected energization, start-up or release of energy to the employer having the burden of showing its reliable control circuit meets some specified level of safety performance,” the lawyers note. Confronting Complexity The agency already has history dealing with this issue. It issued a variance to a company in 2016 authorizing it to use reliable control circuitry rather than energy isolation for a specific task after performing a safety review of the complete system. In that case, OSHA energy control measures remained under the personal control of the exposed employee, employees were able to verify de-energization, and authorized employees were easily identified before restart. The agency also found that the alternative system as a whole could be considered protective and an energy isolating device, even after taking into account the potential for component failures and attempts to bypass the system. “We believe OSHA recognizes this determination must be based on objective criteria tied to risk assessment,” the attorneys say. Because hiring a qualified expert to perform an assessment of each machine is prohibitively expensive, OSHA suggests determining whether a system can achieve a certain safety integrity level under IEC standards or performance level under ISO standards. It is asking, in effect, what safety integrity level could reduce the risk to an acceptable point. “At the highest levels, the costs can be dramatically higher,” the lawyers say. “How would those levels be assessed if not provided by the manufacturer? What if the manufacturer provides an assessment for the machine prior to integration into a manufacturing line? What if the machine is subsequently modified by the user?” OSHA also wants to know how it can address the issue of older equipment where safety circuits do not achieve the necessary safety integrity level or performance level. Would OSHA, depending on the safety integrity level or performance level achieved, and the history of use of the equipment, consider grandfathering that equipment with or without some phase-in of required retrofitting? If so, to what level? OSHA also requires what would be an appropriate mechanism for verifying that a company can demonstrate the control circuitry satisfies applicable criteria. In issuing the cases where it issued the variance discussed earlier, it took OSHA about two years to determine that one control circuit-based system at one site was acceptable for one task. The agency also seeks information on how modernizing the LOTO standard might improve worker safety without additional burdens for employers. It especially needs to hear from employers about how their operations would be affected if OSHA staff interprets the “alternative measures that provide effective protection” requirement of the minor servicing exception to include use of the same reliable control circuits, the lawyers say. “If the impact would be significant, OSHA needs to hear about that now rather than later,” they stress. “Failure to weigh in on these issues now could result in huge and unnecessary economic costs.” Comments are due by August 18, 2019. See OSHA’s Federal Register notice  for additional details and information on how to file comments. Let's block ads! (Why?)

Dealing with the Measles Epidemic

The state of New York recently caused a public furor by ending its religious exemption for vaccinations because of the alarming spread of measles throughout the population. Because of this highly infectious disease, school systems throughout the United States are refusing to allow children to attend class unless they can show they have been vaccinated. Headlines are full of stories like these about a disease once thought to have been eradicated in this country. Since Jan. 1, there have been 704 confirmed cases of measles in the U.S. and at least nine measles outbreaks (defined as three or more cases) across the country, according to the Centers for Disease Control and Prevention (CDC). These include outbreaks in California, Illinois, New Jersey, New York, Texas and Washington State. Which raises an obvious question for businesses: What should employers do in the face of this epidemic? After learning that an employee is diagnosed as having the measles, there are a number of steps any employer can take to help employees protect themselves, according to attorney Bradford Hammock of the law firm of Littler Mendelson PC. First, contact your local public health department to seek guidance about handling the situation. It can be an important source of information regarding how the disease is transmitted and what steps should be taken to protect the employee diagnosed with measles as well as to protect other potentially exposed employees. One thing to keep in mind is that employee privacy rights under the Health Insurance Portability and Accountability Act (HIPAA) mandate that employers, medical professionals and health service companies protect the identity of a patient’s health status, Hammock warns “If you learn that an employee has been diagnosed with measles, you may be tempted to alert the rest of your staff immediately. Don’t!” he cautions. “Not only can this cause an unnecessary panic, but you must also be careful about employee privacy concerns and the information you share.” He adds that it may be possible that measles can be defined as a “disability” under the federal Americans with Disabilities Act (ADA) and state and local law counterparts to the ADA, especially those jurisdictions with disability definitions that are even broader than the ADA. Getting the Right Information Your local public health department also may be able to provide guidance about the need for, and scope and content of, any kind of notification that an employer should make to other workers who may have been exposed. With this disease, communication is vitally important, Hammock stresses. Measles is highly contagious for those who are not immune to the virus, and it can be spread easily to others through coughing and sneezing. Also, the measles virus can live for up to two hours in an airspace where the infected person coughed or sneezed. If other people breathe the contaminated air or touch the infected surface, and then touch their eyes, nose or mouth, they can become infected. Measles is so contagious that if one person has it, up to 90% of the people close to that person who are not immune also will become infected, according to the CDC. And it hangs around for a while. Infected people can spread measles to others from four days before through four days after the rash associated with the disease appears. If you decide to notify employees that they may have been exposed to measles, make sure you do not identify the diagnosed individual, Hammock stresses. Instead, you can let them know that it has come to your attention that someone who was present in the workplace was diagnosed with the measles and your company is following recommended medical guidelines. “To reduce the risk of causing panic, employers should provide only scientific and medical information about the disease, including steps employees can take to reduce the chances of infection,” he urges. Hammock also notes that because there are no specific OSHA standards applicable to a measles outbreak, the agency does not mandate that employers notify other exposed employees, although you may decide that doing so is the best course of action to pursue. When it comes to the infected employee taking leave, keep in mind that federal ADA and Family and Medical Leave Act provisions may apply, depending on the situation, in addition to any state or local laws. “As a practical matter, the ill employee presumably will need to take time away from work during treatment and recovery, and the employee may or may not have paid time off (PTO) accrued,” he says. “If the employee does not have PTO available, he or she should be encouraged to work with human resources to find a way to limit any further exposure to coworkers during his or her recovery by working from home or taking unpaid leave.” Being Cautious Is Good To be especially cautious, you could allow employees who are concerned that they may have been exposed to the measles or are uncomfortable going to the office during the infectious period to take PTO if they wish, Hammock adds. “In fact, if the employer is notified that another employee has a medical impairment that compromises his or her immune system in such a way that exposure to measles may create a ‘direct threat’ of harm to the employee, it may be necessary to engage in the interactive process to determine the nature of the employee’s medical status and need for accommodation.” In that case, he says, it likely will make sense to place such employees off work or permit them to work from home pending this interactive process. Employers also must be careful not to take any adverse employment actions against an employee with the measles diagnosis because of that diagnosis or any associated need for leave. Many laws exist to protect employees from any kind of discrimination due to health concerns and for certain types of leave requests. Requiring employees to be vaccinated for the measles can be problematic if your employees do not work in a healthcare setting or around vulnerable populations, Hammock also warns. “There are privacy, disability and religious discrimination considerations regarding vaccinations that preclude an easy answer to this question. At the very least, and particularly if you are unsure whether employees have been vaccinated for the measles, you could inform them about medical facts regarding measles transmission and treatment.” He reminds employers that they can provide a fact sheet from the CDC to employees and make sure to reassure them that the ill individuals will be out of the office until medically cleared to return. To encourage employees to seek vaccination voluntarily, employers can inform workers that the measles vaccine is safe and effective, and provide links to the CDC information. The employer also can stress that getting the measles vaccine within 72 hours after exposure may stop fellow employees from getting sick. “This information should reduce any potential panic and ensure that anyone who feels they have been exposed to the disease feels empowered to protect their own health,” Hammock observes. Some employers go a step further and provide for onsite vaccinations at the workplace or offer to pay for their employees’ vaccinations. “With these steps—and a liberal grant of PTO where necessary—employers can help minimize risks and help employees stay healthy,” Hammock concludes. Let's block ads! (Why?)