OSHA Safety Standards

In the past few days OSHA and the folks at the Department of Labor have been busy testifying before congress on the Protecting America’s Workers Act (PAWA).

On April 28th Jordan Barab Deputy Assistant Secretary for Occupational Safety and Health,  testified before The Subcommittee on Workforce Protections The Committee on Education and Labor U.S. House of Representatives.   He spoke specifically on the section of the Act dealing with which expands the “OSH Act’s anti’retaliation provisions, codifies a worker’s right to refuse to perform unsafe work, prohibits employer policies that discourage workers from reporting illnesses or injuries, prohibits employer retaliation against employees for reporting injuries or illnesses, and grants workers the right to further pursue their case if OSHA does not proceed in a timely fashion”. (full transcript of testimony)

On April 29th the Secretary of Labor Hilda L. Solis released a statement on the PAWA.  In it she said “PAWA would strengthen the OSH Act by increasing protections for whistleblowers, providing additional rights to accident victims and their families, improving Occupational Safety and Health Administration enforcement, and increasing the monetary and criminal penalties for violations of the law. It would also extend OSHA coverage to all public employees in America”. (Full statement)

If you are for or against the Protecting America’s Workers Act, now is the time to let your representative in the U.S. House and Senate know how you feel. To find out who your Representative is go to: http://www.house.gov/

To find your Senator go to: http://www.senate.gov/general/contact_information/senators_cfm.cfm

If you don’t participate in the process do not complain about the outcome.

On Feb 1st Secretary of Labor Hilda L. Solis, had a national online discussion with stakeholder groups, the general public and the news media, where she outlined the president’s fiscal year  (FY) 2011 budget request for the U.S. Department of Labor, which is built around the vision of “good jobs for everyone.”

Among the highlights of the proposed budget were:

• $1.7 billion for worker protection programs, a four percent increase over the prior year’s budget.
• The department expects to hire more than 350 new employees, including 177 investigators and other enforcement staff, many of whom will be bilingual to better communicate with employees in the changing workplace.
• The FY 2011 budget includes an additional $25 million for a Misclassification Initiative to target misclassification with 100 additional enforcement personnel and competitive grants to boost states’ incentives and capacity to address this problem.

It is clear (as we have discussed many time before) that the Department of Labor is continuing to ramp up its enforcement division.

If you are a small (or for that matter Large) business you should pay particular attention to the question of  “the Independent Contractor (Self-Employed) vs. Employee?”

The Secretary stated “When employees are misclassified as ‘independent contractors,’ they are deprived of benefits and protections to which they are legally entitled. For example, independent contractors do not receive overtime and are ineligible to receive unemployment benefits”.

In addition to the Department of Labor the IRS will also be looking at the problem (IRS Independent Contractor (Self-Employed) or Employee?)

“It is critical that you, the business owner, correctly determine whether the individuals providing services are employees or independent contractors. Generally, you must withhold income taxes, withhold and pay Social Security and Medicare taxes, and pay unemployment tax on wages paid to an employee. You do not generally have to withhold or pay any taxes on payments to independent contractors.  If you are an independent contractor and hire or subcontract work to others, you will want to review the information in this section to determine whether individuals you hire are independent contractors (subcontractors) or employees.

Facts that provide evidence of the degree of control and independence fall into three categories:

1. Behavioral: Does the company control or have the right to control what the worker does and how the worker does his or her job?
2. Financial: Are the business aspects of the worker’s job controlled by the payer? (these include things like how worker is paid, whether expenses are reimbursed, who provides tools/supplies, etc.)
3. Type of Relationship: Are there written contracts or employee type benefits (i.e. pension plan, insurance, vacation pay, etc.)? Will the relationship continue and is the work performed a key aspect of the business?

Businesses must weigh all these factors when determining whether a worker is an employee or independent contractor. Some factors may indicate that the worker is an employee, while other factors indicate that the worker is an independent contractor. There is no “magic” or set number of factors that “makes” the worker an employee or an independent contractor, and no one factor stands alone in making this determination. Also, factors which are relevant in one situation may not be relevant in another.

The keys are to look at the entire relationship, consider the degree or extent of the right to direct and control, and finally, to document each of the factors used in coming up with the determination”.

If you have any doubt contact your lawyer, the penalties can be very high.

This new budget has not been approved by Congress and, if it is, it will not be put into effect until October when the Governments  new Fiscal Year begins.

While this subject is a little out of the realm of OSHA safety it is square on with the subject of your “business safety.”  As we have said before forewarned is forearmed.

You have just been forewarned.

(OSHA News Release 01-/04/2010)

In July 2009, an employee of CES Environmental Services Inc. was cleaning a tank when an altered piece of equipment ignited flammable vapors inside the tank, and he was killed in an explosion.  OSHA is alleging that 15 pieces of electrical equipment were unsafe to use in the tank wash area due to the presence of flammable and combustible vapors.
The National Electrical Code (NEC) defines hazardous locations as those areas “where fire or explosion hazards may exist due to flammable gases or vapors, flammable liquids, combustible dust, or ignitable fibers or flyings.”

A substantial part of the NEC is devoted to the discussion of hazardous locations. That’s because electrical equipment can become a source of ignition in these volatile areas. Articles 500 through 504, and 510 through 517 provide classification and installation standards for the use of electrical equipment in these locations.

According to the NEC, there are three types of hazardous locations:

Class I Location is one in which flammable gases or vapors may be present in the air in sufficient quantities to be explosive or ignitable. Some typical Class I locations are:

-Petroleum refineries, and gasoline storage and dispensing areas;
-Dry cleaning plants where vapors from cleaning fluids can be present;
-Spray finishing areas;
-Aircraft hangars and fuel servicing areas; and
-Utility gas plants, and operations involving storage and handling of liquefied petroleum gas or natural gas.
-All of these are Class I . . . gas or vapor . . . hazardous locations. All require special Class I hazardous location equipment.

Class II Locations are those areas made hazardous by the presence of combustible dust. Some typical Class II locations are:
-Grain elevators;
-Flour and feed mills;
-Plants that manufacture, use or store magnesium or aluminum powders;
-Producers of plastics, medicines and fireworks;
-Producers of starch or candies;
-Spice-grinding plants, sugar plants and cocoa plants; and
-Coal preparation plants and other carbon handling or processing areas.

Class III Locations are areas where there are easily-ignitable fibers or flyings present, due to the types of materials being handled, stored, or processed. The fibers and flyings are not likely to be suspended in the air, but can collect around machinery or on lighting fixtures and where heat, a spark or hot metal can ignite them. Some typical Class III locations are:
-Textile mills, cotton gins;
-Cotton seed mills, flax processing plants; and
-Plants that shape pulverize or cut wood and create sawdust or flyings.

Class locations are further broken down into Division 1 (normal operations) and Division 2 (abnormal operations). Does this location meet its Class I, II, or III designation during normal operations or only during abnormal operations?

A given hazardous location can contain only equipment that is approved for use in that location

If you or your employees are working in one of these area’s be sure that you are familiar with all of the requirements of the National Electrical Code Article 500 Hazardous Locations (NEC NFPA 70)

Arcs and sparks produced by the normal operation of equipment, like motor starters, contactors, and switches, can ignite a hazardous location atmosphere. The high temperatures of some heat-producing equipment, such as lamps and lighting fixtures, can ignite flammable atmospheres if they exceed the ignition temperature of the hazardous material. The National Electrical Code requires special marking of heat – producing equipment with temperatures above 100oC (212oF).

Electrical equipment failure is another way an explosion could be set off. A burn out of a lamp socket or shorting of a terminal could spark a real disaster in a hazardous location.

Do not cut corners by using less expensive equipment or material, which is not approved for use in the location.  The result could be deadly.

Know the rules, know the equipment, and know you are dealing with a reputable supplier.

James Norton is the President of the JHN Group, he can be contacted regarding Machine Safety Consulting at jamesnorton@jhngroup.com

So you’re a one or two person company and all that you do is install and service IT equipment the most powerful tool you use is a drill you are thinking I will never have to deal with OSHA.  Think again.  While it is true that as a small company you are exempt from many of the reporting requirements of OSHA (see FirstStep Employment Law Overview Advisor (http://www.dol.gov/elaws/FirstStep/), you are not exempt from injuries that can befall full, part-time or temporary employees.

If you or an employee are involved in an accident with a vehicle that involves a fatality or injuries requiring the hospitalization of three or more employees, you must report it to OSHA under 1904.1(a)(1):

If your company had ten (10) or fewer employees at all times during the last calendar year, you do not need to keep OSHA injury and illness records unless OSHA or the BLS informs you in writing that you must keep records under § 1904.41 or § 1904.42. However, as required by § 1904.39, all employers covered by the OSH Act must report to OSHA any workplace incident that results in a fatality or the hospitalization of three or more employees.

Further the law requires that you make that report in person or over the phone within eight hours (§ 1904.39)

Basic requirement. Within eight (8) hours after the death of any employee from a work-related incident or the in-patient hospitalization of three or more employees as a result of a work-related incident, you must orally report the fatality/multiple hospitalization by telephone or in person to the Area Office of the Occupational Safety and Health Administration (OSHA), U.S. Department of Labor, that is nearest to the site of the incident. You may also use the OSHA toll-free central telephone number, 1-800-321-OSHA (1-800-321-6742).

Okay you say you’re a safe driver or you always use public transportation this is not something I have to worry about.  I will tell you that no matter how safe you think your business is there are always dangers that you overlook.  Let’s say you have a job that is need two folks to “pull cable” no voltage worry it’s a cat.5 cable,  no machinery it’s in a small office warehouse setting and they do not use any powered equipment, in fact the only thing you need is a helper and a step later, how dangerous could that be.

Well if you ask the owners of Pfeiffer & Sons in La Porte, TX 77571, very (okay they are not a small company but the point is the same).[Weekly Fatality/Catastrophe Report]

On November 2nd 2009 one of their workers “… was in the process of installing a wireless point at a facility” in the process he “was using a 6-ft ladder to access the ceiling” now from here the details are, so far a little scarce, but it appears he leaned back too far and “fell backwards off the ladder, striking his head on the concrete floor”   The worker was dead on arrival at the local hospital.

The point of all of this is not that you should worry about OSHA no matter how small you are, it is that you should worry about your safety and your employees safety no matter how small you are or how “safe” you think your business is.  The goal is for you and anyone who works for you to go home safe to their family every night

James Norton is the President of the JHN Group, he can be contacted regarding Machine Safety Consulting at jamesnorton@jhngroup.com

The Government Accountability Office (GAO) issued a report in October on “Enhancing OSHA’s Records Audit Process Could Improve the Accuracy of Worker Injury and Illness Data”.  What is the (GAO) ?  The U.S. Government Accountability Office (GAO) is an independent, nonpartisan agency that works for Congress. Often called the “congressional watchdog,” GAO investigates how the federal government spends taxpayer dollars. The head of GAO, the Comptroller General of the United States, is appointed to a 15-year term by the President from a slate of candidates Congress proposes.  Why should you care about a report issued by them?  You should care because OSHA cares.

The Secretary of Labor Hilda L. Solis. stated “Accurate injury and illness records are vital to protect workers’ health and safety…They not only enable OSHA to better target its resources and determine the effectiveness of its efforts, accurate numbers are also an important tool that workers and employers can use to identify hazards in their workplaces.”

On November 16th  Acting Assistant Secretary for OSHA Jordan Barab announced that the agency will move swiftly to implement the recommendations made by the GAO. Additionally, in response to numerous studies of under-reporting and congressional interest, on Oct. 1, OSHA implemented a National Emphasis Program on Recordkeeping. OSHA will send inspectors into worksites across the country to review the occupational injury and illness records prepared by businesses.

The (GAO) report  “identifies worker intimidation as well as a number of disincentives that may discourage workers and employers from reporting work-related injuries and illnesses. The report also notes widespread reports from occupational health practitioners who were pressured not to record an injury or illness”.

If your company as failed to keep the records required by OSHA  (see the OSHA website  for a handbook on the requirements http://www.osha.gov/recordkeeping/handbook/index.html) you may be in trouble, “Many of the problems identified in the report are quite alarming, and OSHA will be taking strong enforcement action where we find underreporting,” Secretary  Solis said.

As we have said before OSHA is on the march to enforce their regulations and the laws.  The fines they are proposing are now going well into the millions of dollars.

It is time to get your house in order and obey the laws of the land.

James Norton is the President of the JHN Group, he can be contacted regarding Machine Safety Consulting at jamesnorton@jhngroup.com

Highway Work Zones and high-visibility warning garments

Do you or your employees work in Highway Work Zones?  If so you might want to look at a new interpretation letter from OSHA Standard Interpretations Letter #20080829-8611 published August 5th 2009. This letter replaces one issued by OSHA on May 11, 2004.

In the new letter OSHA states in part  “The Federal Highway Administration (FHWA) recent mandatory standard for workers on federal-aid highways shows that struck-by hazards in highway/road construction work zones are well recognized by the construction industry. Furthermore, the standard indicates that a feasible means of addressing that hazard is the wearing of high-visibility apparel. Accordingly, high-visibility apparel is required under the General Duty Clause to protect employees exposed to the danger of being struck by public and construction traffic while working in highway/road construction work zones. Typically, workers in a highway/road work zone are exposed to that hazard most of the time”.

Remember that an OSHA interpretation letter from the Washington Office of OSHA can be used to cite you for a violations of its terms.

FLU Protection

If you want up-to-date information on what to do about the “flu” you should visit FLU.gov This web site provides comprehensive government-wide information on pandemic influenza and avian influenza for the general public, health and emergency preparedness professionals, policy makers, government and business leaders, school systems, and local communities.  Content for this Web site are provided by:

•    The White House
•    U.S. Department of Agriculture (USDA)
•    U.S. Department of Defense
•    U.S. Department of Education
•    U.S. Department of Health and Human Services
•    U.S. Department of Homeland Security (DHS)
•    U.S. Department of the Interior (DOI)
•    U.S. Department of Labor (DOL)  (OSHA)
•    U.S. Department of State (DOS)
•    U.S. Environmental Protection Agency (EPA)

If nothing else the site includes a Flu Shot Locator (H1N1 and Seasonal) by state.

James Norton is the President of the JHN Group, he can be contacted regarding Machine Safety Consulting at jamesnorton@jhngroup.com

Drug-Free Work Week is sponsored by the Department of Labor; it takes place October 19 to 25th and is a dedicated time each year to highlight the benefits that drug-free workplace programs bring to employers, workers and communities. It is a time to work toward making every week a drug-free work week!  Supporting this national public awareness campaign provides an opportunity to reinforce the importance of being drug free to maintaining workplace safety and health and to encourage workers with alcohol and drug problems to seek help.  It spreads the word that working drug free works to…

•    Prevent accidents and make workplaces safer
•    Improve productivity and reduce costs
•    Encourage people with alcohol and drug problems to seek help

According to recent research, it’s a message that many workers need to hear.

•    75 percent of the nation’s current illegal drug users are employed—and 3.1 percent say they have actually used illegal drugs before or during work hours.
•    79 percent of the nation’s heavy alcohol users are employed—and 7.1 percent say they have actually consumed alcohol during the workday.

Drug-Free Work Week is a time to reinforce the importance of working drug free in positive, proactive ways. To get Drug-Free Work Week resources or learn more about how your organization can participate, select one of the following:

Ideas for Individual Employers and Their Employees
Drug-Free Work Week Tool Box

This 4th annual Drug-Free Work Week is a good time for you to address this issue for the benefit of your company, your employees and your community

James Norton is the President of the JHN Group, he can be contacted regarding Machine Safety Consulting at jamesnorton@jhngroup.com

On July 28th President Obama announced that he would nominate David Michaels to the office of Assistant Secretary for the Occupational Safety and Health Administration, Department of Labor.  David Michaels, PhD, MPH, is an epidemiologist and is currently Research Professor at the Department of Environmental and Occupational Health at the George Washington University School of Public Health and Health Services.  He has conducted numerous studies of the health effects of occupational exposure to toxic chemicals, including asbestos, metals and solvents, and has written extensively on science and regulatory policy.  From 1998 to 2001, Dr. Michaels served as Assistant Secretary of Energy for Environment, Safety and Health, responsible for protecting the health and safety of workers, neighboring communities and the environment surrounding the nation’s nuclear weapons facilities.  In that position, he was the chief architect of the historic initiative to compensate nuclear weapons workers who developed occupational illnesses as a result of exposure to radiation, beryllium and other hazards.  In 2006, Dr. Michaels received the American Association for the Advancement of Science’s Scientific Freedom and Responsibility Award for his work on behalf of nuclear weapons workers and for his advocacy for scientific integrity. He is also the recipient of the 2009 John P. McGovern Science and Society Award given by Sigma Xi, the Scientific Research Society.

OSHA has been without a permanent administrator since Edwin Foulke Jr. resigned in November 2008. Thomas M. Stohler was named acting assistant secretary of labor for OSHA at that time. In April 2009, U.S. Labor Secretary Hilda Solis named Jordan Barab, senior labor policy advisor for health and safety for the House Education and Labor Committee, OSHA’s deputy assistant secretary and acting assistant secretary until a permanent administrator could be named.

What direction will this new leader take OSHA (assuming he is confirmed)?  In a paper he presented in April of 2007 he stated “I strongly believe that to better protect American workers from workplace hazards, OSHA needs to move away from hazard-specific  standard setting.  There are some steps toward this goal that OSHA could implement immediately.”  Further he states “When Congress passed the OSHA  Act, the  bill’s authors recognized that the agency could not have a standard for every conceivable  workplace hazard”.  “Congress gave OSHA the general duty clause … it needs to use the clause when its inspectors document hazards”.

If you haven’t gotten the message before please get it now, more enforcement is coming, bigger fines (including into the millions) are coming, you ignore hazards and safety standard violations at your peril.
Using safe work practices and conforming to current safety standards is the right thing to do for yourself, your employees and your company.  If you can’t do it because it is right at least do it because it is the smart way to stay in business and not face large fines, huge lawsuits, or the family of any employee who has died.

James Norton is the President of the JHN Group, he can be contacted regarding Machine Safety Consulting at jamesnorton@jhngroup.com

Yikes! I thought that the proposed fine we last talked about was large.  Milk Specialties Co. in Whitehall, Wisc., was cited by OSHA for a number of violations and the proposed total fine is $1,145,200.00.

In December of 2008 OSHA in response to a complaint alleging a variety of safety hazards at the company’s whey processing plant, began an investigation.  As a result of that OSHA issued 17 willful citations for the employer’s failure to comply with OSHA’s confined space entry and control of hazardous energy requirements. Proposed penalties for the willful violations total $1,071,000. OSHA defines a willful violation as one committed with plain indifference to or intentional disregard for employee safety and health.  Seventeen serious citations, with proposed penalties totaling $52,400, include combustible dust and electrical hazards; lack of exit route lighting and signage; lack of confined space evaluations; uninspected fire extinguishers; and untrained and uncertified powered industrial truck operators, among other issues. A serious citation is issued when death or serious physical harm is likely to result if an accident were to occur from a hazard about which the employer knew or should have known. Four repeat violations with penalties totaling $21,800 address the guarding of floor and wall openings, ladders and respiratory protection, and other issues addressed in previous inspections of this company. OSHA issues a repeat citation when it finds an employer’s violation is substantially similar to a previously cited condition that was affirmed as a violation through a final order of the Occupational Safety and Health Review Commission.

Milk Specialties has been inspected by OSHA 15 times since 1974, including four inspections in Wisconsin between 2006 and 2008, with citations resulting from many of the same safety and health hazards cited in the most recent inspection.

Labor Secretary Hilda Solis and Acting Assistant Secretary of Labor for OSHA Jordan Barab have been speaking out about the future goals of OSHA. Enforcement leads the list. Their goal is to hire 150 new inspectors, increase the number of annual inspections from 38,000 to 44,000, increase penalties, scrutinize incentive programs, review the VPP program, and be more aggressive with standards and recordkeeping.

This is the agenda, for the agency, and they have the support of Congress and the Administration.

The days of a slap on the wrist with a promise to sin no more are over. Our best advice to you is make sure you are in compliance.

James Norton is the President of the JHN Group, he can be contacted regarding Machine Safety Consulting at jamesnorton@jhngroup.com

U.S. Labor Department’s OSHA proposes more than $255,000 in fines against New Hampshire firearms manufacturer for 60 safety and health hazards

On June 11th 2009 OSHA proposed a $255,000 in fines against a New Hampshire firearms company.
Sturm Ruger & Co. Inc. is one of the nation’s leading manufacturer of high-quality firearms for recreation and law enforcement, and a major producer of precision steel investment castings. OSHA conducted their inspections between November 2008 and May 2009.

According to Rosemarie Ohar, OSHA’s area director in New Hampshire, “Our inspections identified a large number of mechanical, respirator protection, electrical, lead, fire, explosive and other hazards that must be effectively and continuously addressed to protect the workers at this plant from potentially deadly or disabling injuries and illnesses now and in the future,”

OSHA found that the company failed to guard rotating parts on drill presses, sanding and polishing machines despite its knowledge that employees were exposed to severe or fatal injuries if they came in contact with the rotating parts. As a result, OSHA has issued the company one willful citation with $63,000 in proposed fines. OSHA defines a willful violation as one committed with plain indifference to or intentional disregard for employee safety and health.

Additional safety hazards include the lack of spark detectors or suppression systems to minimize fire and explosion hazards in ventilation systems that collect combustible wood and metal dust; allowing combustible dust to accumulate; unguarded floors and platforms; lack of eyewashes and adequate personal protective equipment; inadequate procedures, equipment and training to lock out machines’ power sources; improper storage of compressed gas cylinders; damaged, improperly used or ungrounded electrical equipment; additional unguarded machinery; and deficiencies with paint spray booths, confined space rescue, compressed air, forklifts and the transfer of flammable liquids.

The health inspection identified employees exposed to excess levels of lead dust; inadequate lead monitoring, training, hygiene, cleaning and disposal methods; inappropriate selection of respirators for lead; improper respirator fit-testing and use; no medical evaluations for employees using respirators; no refitting and retraining for employees who experienced a hearing threshold shift; and unlabeled containers of hazardous chemicals.

These conditions resulted in the issuance of 55 serious citations with $188,550 in fines. OSHA issues serious citations when death or serious physical harm is likely to result from hazards about which the employer knew or should have known.

The company also has been fined $3,600 and issued four other-than-serious citations for inadequate recordkeeping.
Sturm Ruger has 15 business days from receipt of the citations and proposed penalties to comply, request an informal conference with the area director or contest them before the independent Occupational Safety and Health Review Commission. The inspection was conducted by OSHA’s Concord Area Office;

We have talked in the past about the fact that OSHA will, most likely, be increasing their inspections and their enforcement.  This is an example of what that may mean in the “real world”.

It is time to get your house in order.

James Norton is the President of the JHN Group, he can be contacted regarding Machine Safety Consulting at jamesnorton@jhngroup.com