Injury and Illness Rates Unchanged in 2018

Each year, the Bureau of Labor Statistics (“BLS”) conducts the Survey of Occupational Injuries and Illnesses (“SOII”), collecting a sample of data from select employers to represent all industries and sizes of establishments. From that sample, BLS calculates national injury and illnesses rates for certain industries.

In 2003, the injury and illness rate for private sector employers sat at 5.0 recordable injuries for every 100 full-time equivalent workers. Since then, the overall injury and illness rate for the private sector has either declined or remained that same year after year. BLS recently released the injury and illness date for 2018. And, 2018 was no different from prior years as the injury and illness rate remained at 2.8, the same rate as 2017. The BLS also calculated that there were about 2.81 million work-related injuries or illnesses in 2018. This too was the same estimate as 2017. Additionally, in 2018 there were 900,380 injuries or illnesses that caused at least one day away from work, which is essentially unchanged from 2017.

But not each industry maintained the same injury and illness rate from 2017 to 2018. The retail trade industry saw an increase in its total recordable rate from 3.3 in 2017 to 3.5 in 2018. Similarly, the agriculture, forestry, fishing and hunting industry saw its rate increase from 5.0 to 5.3. Other industries saw modest decreases in their industry and illnesses rates. For instance, the manufacturing industry saw its total recordable rate decrease to 3.4 from 3.5 in 2017. The construction industry also saw its rate fall to 3.0 from 3.1.

In addition to providing injury and illness data on large industries, the BLS also broke down industries into smaller subsectors. Several subsectors had injury and illness rates higher than that of their respective industries. The highest subsector rates were pet care services at 11.4; veterinary services at 10.4; steel foundries at 10.2; and skiing facilities at 10. When it came to the public sector, the highest rate belonged to state-operated nursing and residential care facilities, which had an injury and illness rate of 11.9.

Belonging to an industry that has a higher or increasing injury and illness rate does not mean that individual employers do not keep their employees safe or fail to provide a safe and healthy work environment. But employers in those industries should know that OSHA will likely use this BLS data to set its enforcement priorities in the near future.

Finally…OSHA Focuses on Leading Indicators in Safety & Health

Recently, OSHA announced its intention to hold a stakeholder meeting in Washington D.C. next month to obtain information to create tools to help employers with developing and using leading indicators for safety and  health.  OSHA has long focused on “OSHA recordables” (number of recorded work-related injuries on an employer’s OSHA 300 Log) as a way to illustrate how safe an employer’s workplace may be.  However, most safety and health professionals decry the use of such lagging indicators and instead focus on the use of leading indicators, which are proactive in nature.  Lagging indicators are those attempt to measure the effectiveness of an employer’s safety and health program after the fact, lagging indicators are reactive in nature. For example, the number or work-related injuries or days away from work (DAFW) are lagging indicators.  Leading indicators, on the other hand, are proactive in nature and attempt to take proactive measures to address safety and health in the work environment. According to OSHA, “Leading indicators are proactive, preventive, and predictive measures.  A good safety and health program uses leadng indicators to drive change and lagging indicators to measure effectiveness.”

OSHA is looking to open up the dialogue with stakeholders and have a facilitated group discussion with participants. Specifically the meeting will be a roundtable discussion with questions posed by OSHA. OSHA will focus on the questions provided in the notice of stakeholder meeting that are listed below.

To what extent are leading indicators used in your workplace?

Do you use leading indicators as a preventative tool for fixing workplace hazards, or as a tool for improving performance of your safety and health program?

What leading indicators are most important in your workplace? Why were these indicators chosen?

How do you determine the effectiveness of your leading indicators? How do you track your leading indicators?

What leading indicators are, or could be, commonly used in your industry?

What challenges, if any, have you encountered using leading indicators?

How many employees are at your facility, and how many are involved in tracking leading indicators?

How has the use of leading indicators changed the way you manage your safety and health program or other business operations?

What should OSHA do to encourage employers to use leading indicators in addition to lagging indicators to improve safety management?

The meeting will be held on November 7, 2019 from 1:00 p.m to 4:30 p.m. ET at the U.S. Department of Labor, 200 Constitution Avenue NW, Washington DC 20210 in Conference Room N-4437. OSHA has established a first-come, first-served registration and for stakeholders wishing to attend they can register online by October 30, 2019 at:  https://projects.erg.com/conferences/osha/register-osha-leadingindicators.htm.

 

OSHA Releases Annual “Top 10”

With the end of the federal government’s fiscal year having ended on September 30, OSHA recently released the top ten violations for fiscal year 2019. Generally, this list does not change much from year to year with the top three violations tending to be fall protection, hazard communication, and scaffolding. OSHA noted that the violation data was through August 15, 2019 and not all violations had been added to its reporting system. But the order of the below list is not expected to change.

Overall Top Ten Violations for FY 2019

Fall Protection (Construction – 29 CFR 1926.501) Total of 6,010 violations. Frequently violated requirements under the fall protection standard includes failure to provide fall protection for unprotected edges and open sides in residential construction and failure to provide fall protection on low-slope roofs.

Hazard Communication (29 CFR 1910.1200) Total of 3,671 violations. Common violated requirements include failure to have a written hazard communication program and failure to provide employee access to safety data sheets.

Scaffolding (29 CFR 1926.451) Total of 2,813 violations with the most frequent violations including improper access to surfaces and lack of guardrails.

Lockout/Tagout (29 CFR 1910.147) Total of 2,606 violations. Frequent violations include those regarding providing employee training and failure to conduct periodic inspections.

Respiratory Protection (29 CFR 1910.134) Total of 2,450 violations. Typically, respiratory protection violations involve those for the failure to establish a written respiratory protection program and failure to provide medical evaluations.

Ladders (Construction – 29 CFR 1926.1053) Total of 2,345 violations with frequent violations including improper use of ladders, damaged ladders, and using the top step.

Powered Industrial Trucks (29 CFR 1910.178) Total of 2,093 violations. Typical violations include providing employee training and refresher training.

Fall Protection—Training (Construction – 29 CFR 1926.503) Total of 1,773 violations. Frequently cited conditions include failure to train employees in identifying fall hazards and proper use of fall protection equipment.

Machine Guarding (29 CFR 1910.212) Total of 1,743 violations with the most frequent for failure to guard points of operation.

Eye and Face Protection (29 CFR 1926.102) Total of 1,411 violations with frequent violations for failing to ensure employees use appropriate eye or face protection.

OSHA Proposes Revisions to Final Beryllium Standards for Construction and Shipyards

On September 30, 2019, OSHA issued a final rule for Occupational Exposure to Beryllium and Beryllium Compounds in Construction and Shipyards.  Rather than revoke the ancillary provisions for these two industries as anticipated, OSHA  “determined that there is not complete overlap in protections between the standards’ ancillary provisions and other OSHA standards.”

OSHA  delayed the compliance dates for all ancillary provisions of the construction and shipyard standards until September 2020.  OSHA also announced its intent to engage in additional rulemaking to amend the standards for construction and shipyards by “more appropriately tailoring the requirements of the standards to the exposures in these industries.”

On October 8, 2019, OSHA issued a Notice of Proposed Rulemaking (NPRM) proposing revisions of the final standards for construction and shipyard industries to tailor the requirements under the ancillary provisions to the specific industries.

OSHA is proposing changes to ancillary provisions including the written exposure control requirements, engineering and work practice controls, respiratory protection, personal protective equipment, hygiene areas and practices, housekeeping and medical surveillance.  OSHA is broadly revising the requirements in both construction and shipyard industries relating to dermal contact to materials containing beryllium in trace quantities.  In this NPRM, “OSHA is now proposing to remove provisions triggered by dermal contact or beryllium contamination entirely.”

In the NPRM, OSHA explains in detail the agency’s rationale for the proposed revisions. A summary of some of the proposed revisions to the final standards for construction and shipyards is outlined below.

Written Exposure Control Plan

  • Require the written exposure control plan to list of operations and job titles reasonably expected to involve exposure to beryllium (which would include abrasive blasting and welding operations where exposures at or above the action level are reasonably foreseeable).
  • Revoke the requirement for additional lists of operations and job titles involving exposure above the action level (AL) and above the permissible exposure level (PEL) or short term exposure level (STEL).
  • Revoke the requirement that the exposure control plan to include procedures for minimizing cross-contamination.
  • For construction, require employers to establish procedures for restricted access work areas where exposures to beryllium could reasonably exceed the PEL or STEL, such procedures would be implemented by a competent person.
  • For shipyards, require employers to establish regulated areas requiring employers to designate areas where beryllium exposures could exceed the PEL or STEL and limit access to authorized employees.
  • Require both industries to establish procedures in the written exposure control plan to ensure the integrity of each containment (such as tarps).
  • Revoke the requirement for written plans to contain procedures for removing, laundering, storing, cleaning, repairing, and disposing of beryllium contaminated personal protective clothing and equipment.

Engineering Controls and Work Practice Controls

  • Revoke the requirement to implement engineering controls and work practices where exposures are or can reasonably be expected to meet or exceed the action level (AL).
  • Retain, without revision, the requirement that prohibits rotation of employees to different jobs in order to achieve compliance with the PEL.

Respiratory Protection

  • Revoke the requirement for use of respiratory protection during emergencies.

Personal Protective Equipment

  • Revoke the requirement to provide and ensure the use of PPE when there is reasonable expected dermal contact with beryllium.
  • Revoke the requirement that PPE be removed when it becomes visibly contaminated with beryllium.
  • Modify existing language to ensure that PPE is not removed in a manner that disperses beryllium in the air.

Hygiene Areas and Practices

  • Remove paragraph (i) completely from construction and shipyard standards because other existing standards provide many of the same protections.

Housekeeping

  • Remove paragraph (j)(1)(general requirements for housekeeping) from construction and shipyard standards, which requires employers to follow the written exposure control plan when cleaning beryllium-contaminated areas.
  • Permitting the use of compressed air for cleaning without a ventilation system in circumstances where there is a limited quantity of dust.

These proposed changes to the construction and shipyard final standards are intended to “appropriately tailor the requirements… to the particular exposures in these industries…; aid compliance and enforcement across the beryllium standards by avoiding inconsistency…; and to clarify certain requirements with respect to materials containing only trace amounts of beryllium.”  OSHA is accepting comments until November 7, 2019.

 

 

OSHA Recommends Best Practices to Prevent Whistleblower Retaliation

You might be surprised to learn that the Occupational Safety and Health Administration (OSHA) enforces 22 different whistleblower protection laws. This includes laws governing workplace safety and health at construction, manufacturing, energy generation or distribution and other worksites. It also includes a broad array of laws that regulate hazards and prohibited activities specific to airlines, motor vehicle carriers, nuclear facilities, railroads and maritime and other industries.

These laws prevent employers from retaliating against employees who engage in protected activities, such as reporting workplace hazards, injuries, illnesses or potential violations of the law. They can also protect employees who refuse to violate a law or engage in a hazardous activity.

While employees may report violations to their employers, they may also go directly to OSHA. Employers may not prevent an employee from doing the latter, even if the employee declines to notify a manager or Human Resources. When an employee complains to OSHA, the employer may not take an adverse action that may intimidate or dissuade employees exercising their right to blow the whistle on suspected wrongdoing. Adverse actions may include acts such as termination, layoff, demotion, discipline, threats, blacklisting, reassignment to a less desirable position, reduction of hours, isolation, poor performance reviews, or denial of overtime, promotion or benefits.

In its Recommended Practices for Anti-Retaliation Programs, OSHA advises employers to design and implement programs to (1) receive and respond to employee reports of noncompliance with safety and health or other laws and (2) prevent and address retaliation against employees who voice concern. This extends not only to regular employees, but also to temporary employees, leased workers and contractors, especially those who are controlled by the host employer.

A key best practice OSHA suggests is training employees about their right to report issues without delay to OSHA or an appropriate agency. The agency may be well aware that a report was filed a disgruntled current or former employee, but OSHA must still follow up on a complaint without regard to the aims of the complaining employee. Showing the agency a training regimen that reinforces employee rights can send a positive signal to an investigator who may be unsure of your workplace culture.

OSHA suggests an anti-retaliation program that includes five elements:

  1. Committed managers who lead by example, encourage employees to report concerns and respect confidentiality;
  2. A clearly communicated system for resolving employees’ reported concerns;
  3. A system for receiving and responding to reports of retaliation;
  4. Anti-retaliation for employees and managers; and
  5. Program oversight, which may include regular monitoring or audits that identify your program’s strengths and weaknesses.

OSHA offers a few ways to accomplish these objectives, such as multiple confidential or anonymous channels for complaints, follow up interviews with complaining employees, and anonymous surveys of employees to assess your program. OSHA also recommends incentive programs that reward employees for reporting concerns. Top-level managers should be in the know on the results of these measures and engage employees to find ways to improve whistleblower programs.

For a closer look at OSHA’s recommended practices and the 22 whistleblower statutes it enforces, go to www.whistleblowers.gov or you may call OSHA at 1-800-321-OSHA (6742). If you are unsure of the quality of your antiretaliation program, you may consider a third-party review.

OSHA Finalizes Beryllium Standards for Construction and Shipyard Industries

In January 2017, as a departing gift from the Obama administration, OSHA issued a final rule with three separate standards regulating occupational exposures to beryllium in general industry, construction and shipyards. And, contrary to industry expectations and data in the rulemaking record, OSHA broadened the coverage of the construction and shipyard standards. The three standards lowered the permissible exposure limit and short term exposure limit to beryllium and established ancillary provisions such as the requirement to conduct an exposure assessment, methods for controlling exposure, respiratory protection, personal protective clothing and equipment, housekeeping, medical surveillance, hazard communication and recordkeeping.

As part of the final rule, the new permissible exposure limit went into effect on May 11, 2018 for all industries. On December 12, 2018, OSHA began enforcing most provisions of the beryllium standard for general industry, except for change rooms and showers, which took effect on March 11, 2019 and engineering controls which will take effect on March 10, 2020.

Shortly after the promulgation of the final rule, OSHA announced its intention to undertake additional rulemaking regarding the ancillary provisions applicable to construction and shipyards and announced it would not enforce those provisions until further rulemaking. On June 27, 2017, OSHA published a notice of proposed rulemaking (NPRM) proposing to revoke the ancillary provisions for both the construction and shipyard standards.  The proposal was based on considerations that other standards such as the respiratory, sanitation and other current standards provide adequate protection for the limited employees potentially exposed to beryllium in construction and shipyards. In the NPRM OSHA stated,  “OSHA has evidence that beryllium exposure in these sectors is limited to the following operations: Abrasive blasting in construction, abrasive blasting in shipyards, and welding in shipyards. OSHA has a number of standards already applicable to these operations, including ventilation (29 CFR 1926.57) and mechanical paint removers (29 CFR 1915.34).”  Due to the limited number of employees exposed in construction and shipyards and coverage of other standards regulating abrasive blasting and welding many construction and shipyard stakeholders believed a full beryllium standard for these two industries would result in burdensome requirements but not provide additional protection already afforded by other current standards.

On September 30, 2019, OSHA issued a final rule for Occupational Exposure to Beryllium and Beryllium Compounds in Construction and Shipyards.  Rather than revoke the ancillary provisions for these two industries as anticipated, OSHA  “determined that there is not complete overlap in protections between the standards’ ancillary provisions and other OSHA standards.”  In short, employers in construction and shipyards industries will be required to comply with the final rule for occupational exposure to beryllium issued in January 2017.

OSHA did delay the compliance dates for all ancillary provisions of the construction and shipyard standards until September 2020.  OSHA also announced its intent to engage in additional rulemaking to amend the standards for construction and shipyards by “more appropriately tailoring the requirements of the standards to the exposures in these industries.”

Unfortunately it does not seem likely that OSHA would complete that rulemaking before the September 2020 effective date of the ancillary provisions, which could result in employers in construction and shipyard industries having to establish policies and programs to implement the ancillary requirements, which then later could change.

OSHA Approves New Quantitative Fit Testing Protocols

Pursuant to 29 C.F.R. § 1910.134(f) employees are required to be fit tested prior to wearing tight-fitting respirators and the fit test administered must be using an OSHA-accepted fit test protocol.  Appendix A to § 1910.134 outlines the procedures employers are required to use for fit testing and apply to all OSHA-accepted fit test methods, both Qualitative fit test (QLFT) and Quantitative fit test (QNFT).

Under Appendix A, Part II for § 1910.134, interested parties are able to submit an application to OSHA for approval of a new fit test protocol.  There are currently four available fit testing protocols: Generated Aerosol Quantitative Fit Testing Protocol, Ambient aerosol condensation nuclei counter (CNC) quantitative fit testing protocol (PortaCount), Controlled negative pressure (CNP) quantitative fit testing protocol and Controlled negative pressure (CNP) REDON quantitative fit testing protocol.

In 2014, OSHA received an application for new fit test protocols from TSI Incorporated (TSI).  TSI submitted three fit test protocols:  “Fast-Full” method for elastomeric full-facepiece respirators, “Fast-Half” method for elastomeric half-mask respirators and “Fast-FFR” method for filtering facepiece respirators. The three proposed new fit test protocols were modified and abbreviated versions of the original ambient aerosol CNC protocol.  In October 2016, OSHA issued a proposed notice of rulemaking to add the new protocols and invited public comments.

On September 26, 2019, OSHA issued a final rule approving the new fit testing protocols to be added to Appendix A.  The first is the modified ambient aerosol condensation nuclei counter (CNC) quantitative fit testing protocol for full-facepiece and half-mask elastomeric respirators, the “Fast-Half” and “Fast-Full.” The second new protocol is the modified ambient aerosol CNC quantitative fit testing protocol for filtering facepiece respirators, “Fast-FFR.”

According to OSHA, the major differences between the proposed Fast-Full and Fast-Half methods and the OSHA-approved PortaCount protocol are that the Fast-Full includes only 3 of the 7 current test exercises (i.e. bending, head side-to-side, and head up-and-down) plus one new exercised (i.e., jogging-in-place). According to TSI, the Fast-Full method reduces each exercise duration from 60 seconds to 30 seconds, which results in a total test duration of 2.5 minutes rather than 7.2 minutes.   Similarly, the Fast-FFR method includes 4 of the current test exercises and reduces total exercise time from 7.2 minutes to 2.5 minutes.

These submitted fit test methods were evaluated using ANSI standards and met the required acceptance criteria for test sensitivity, predictive value of a pass, predictive value of a fail, test specificity and kappa statistic. “OSHA determined that the new protocols met the sensitivity, specificity, predictive value, and other criteria outlined in the ANSI annex and will, therefore, provide employees with protections comparable to protections afforded to them by the reference method, which consisted of the standard OSHA exercises listed in Section 1.A. 14 of appendix A of the Respiratory Protection Standard, minus the grimace exercise, in the same order as described in the standard….These are the same test exercises, minus the grimace exercise, that are utilized for both the CNC and CNP protocols.”

These new protocols will serve as alternatives to the four existing quantitative fit testing protocols in Appendix A. OSHA believes that these new protocols will “maintain safety and health protections for workers while providing additional flexibility and reducing compliance burdens.”

The new rule went into effect on September 26, 2019.

Senate Confirms Scalia as Secretary of Labor

Earlier today the Senate confirmed, 53-to-44 , Eugene Scalia, son of late Supreme Court Justice Antonin Scalia, as the next Secretary of Labor. Scalia replaces former Alexander Acosta who resigned in July under mounting pressure due to his involvement in a 2008 plea deal involving Jeffrey Epstein.  Scalia has prior experience with the Department of Labor where he served as solicitor (chief attorney) under an appointment by former President George W. Bush.

Scalia Nomination Clears Senate HELP Committee

This morning the Senate Health, Education, Labor and Pensions (HELP) Committee voted 12-11 along party lines to approve Eugene Scalia’s nomination as Secretary of Labor.  The vote came five days after his confirmation hearing before the HELP Committee on September 19, 2019. This vote advances his nomination to the full Senate where it is expected to be approved.  It is anticipated that the full Senate could vote by the end of the week.

Scalia is a currently a partner with Gibson, Dunn & Crutcher in Washington D.C. and the son of former Supreme Court Justice Antonin Scalia. Scalia previously served as solicitor of the Department of Labor under President George W. Bush.

Trump Officially Nominates Scalia to Head DOL

On Tuesday, President Trump formally nominated Eugene Scalia to serve as Secretary of Labor.  Gene Scalia is the son of late Supreme Court Justice Antonin Scalia. Scalia has prior experience with the Department of Labor where he served as solicitor (chief attorney) under an appointment by former President George W. Bush.

Once Congress returns from summer recess, the Senate Health, Education, Labor and Pensions Committee will hold a confirmation hearing.

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