Category Archives: OSHA

NASA’s Wardrobe Malfunction provides Valuable Reminder to Employers Back on Earth

Contributed by Suzannah Overholt, April 12, 2019

Astronaut on the moon. Elements of this image furnished by NASA

The first all-female spacewalk was planned for Friday, March 29, 2019. News outlets included the event in their coverage of women’s history month and the strides women had made in male dominated industries. However, the Monday before the spacewalk NASA announced that only one female would be able to participate because NASA did not have enough properly configured spacesuits for two women. Attempting to modify an existing uniform in the time before the spacewalk would have involved some risk to the astronaut who wore it. While a spacewalk was completed, the team consisted of a male and female astronaut, not two females. 

Events in space do not ordinarily trigger reminders of one of the most basic responsibilities and liability risks for employers – providing appropriate safety gear for their employees. However, the issue confronted by NASA was a very well publicized reminder to make sure to evaluate your workforce and ensure that you are providing appropriate safety gear.  

Employers are obligated to protect their employees from workplace hazards that can cause injury. That obligation includes providing and maintaining appropriate personal protective equipment (PPE) under certain circumstances as well as providing appropriate training to employees regarding when PPE is necessary, how to don, doff, adjust and wear the PPE, the limitations of PPE, and the proper care and maintenance of the PPE.

According to the U.S. Bureau of Statistics, in 2016 women made up 51.7% of the U.S. workforce, and there is a growing number of women are in the construction and manufacturing sectors. However, concerns have been raised that required PPE is not always available for female workers in those fields. Common examples are ill-fitting work clothes, including flame resistant clothing, harnesses, eye protection, hard hats, and gloves. The Occupational Safety and Health Administration (OSHA) and National Association of Women in Construction have renewed their alliance, which includes educating construction companies on hazards of particular concern to women in the construction industry, including PPE selection, sanitation, and workplace intimidation and violence. That being said, this issue impacts all industries and sometimes in different ways. For example, the health care sector has traditionally had a higher number of women workers. However, there are more men joining the health care sector workforce and so employers must take into consideration the different PPE considerations to ensure that there are appropriate sizes available for all employees, including the men.

The risks of not providing properly fitting PPE are twofold – the risk to the employee’s safety and the risk of liability to the employer. The risks to the employee are fairly obvious – an employee may be injured to an ill-fitting safety harness, get debris in their eye due to poorly fitted eye protection, be injured if too loose of work clothing gets caught in equipment, or as occurred to NASA, the PPE could not be safely used. While for most employers these issues will not become front page news, there are still significant risks including OSHA complaints, citations and penalties, increased injuries and worker’s compensation premiums, and liability under state and federal employment discrimination laws. Employers may also risk criminal charges – the Attorney General for Maine recently filed manslaughter charges against a contractor for the death of a roofer who allegedly fell because he was not wearing fall protection gear. Notably this was not the contractor’s first violation.

Employers should minimize their risk by assessing the PPE that is offered to their employees, ensuring that the range of sizes that is available meets the needs of the workforce. They should also regularly assess their workplaces to ensure that the appropriate PPE is required and being provided.

OSHA Issues Memo on Incentive Programs and Drug Testing

Contributed by Matthew Horn, October 16, 2018

OSHA

Computer with “OSHA” on the screen

On October 11, 2018, OSHA issued an additional memorandum to further clarify its position on incentive programs and drug testing. While the memorandum does not set out drastic changes to OSHA’s earlier rule and guidance, it does indicate that OSHA will take a more practical approach to incentive programs and drug testing than previously indicated.

With regard to incentive programs, it indicates that traditional incentive programs based on a lack of injuries during a particular time period will not be deemed violative of OSHA if the employer has measures in place to ensure that employees are reporting injuries regardless of the programs. With regard to drug testing, it indicates that drug testing is allowed in the following circumstances: 1) random testing; 2) drug testing unrelated to an injury; 3) testing pursuant to a state’s workers compensation laws; 4) testing pursuant to federal law, including U.S. DOT rules; and 5) testing employees whose conduct could have caused or contributed to an incident or injury.

Notably, this memorandum appears to be another step in the right direction by the current administration to implement a more business friendly OSHA

UPDATED 11/22/2017: Deadline to Electronically Submit OSHA Data

Contributed by Matthew Horn, November 21, 2017

BREAKING NEWS: In follow up to our blog from yesterday, OSHA issued a press release this morning extending the deadline to electronically report from 12/1 to 12/15. All other information in the blog remains unchanged.
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On June 27, 2017, OSHA issued a press release announcing that it would be delaying the compliance date for its Rule requiring most employers to electronically submit their injury and illness data to OSHA. The press release pushed back the compliance date four months, from July 1, 2017 to December 1, 2017, so OSHA could review the Rule closely.

Dec1Just over two weeks later, OSHA issued another press release announcing that it would be launching its website allowing employers to submit their injury and illness data on August 1, 2017. On August 1, 2017, OSHA made good on that promise and launched its website, which is linked here. To date, despite OSHA’s promise to review the Rule closely, it has taken no action to roll back or delay the electronic reporting requirements, so the December 1st deadline remains.

Under the Rule, virtually all employers with twenty or more employees are required to submit their completed Form 300A for 2016 by December 1, 2017. In 2018, employers with twenty or more employees must submit their completed Form 300A for 2017 by July 1, 2018, and those employers with more than 250 employees must submit their Form 300 and 301s by that deadline, as well.

While we were hoping OSHA would roll back or delay the Rule, it appears that is not going to happen. Accordingly, all applicable employers would be well-served submitting their data online no later than December 1st.

OSHA Charges Ahead With Electronic Report Rule

Contributed by Matthew Horn, August 2, 2017

Electronic Reporting File_2On June 27, 2017, OSHA issued a press release announcing that it would be delaying the compliance date for its Rule requiring most employers to electronically submit their injury and illness data to OSHA. The press release proposed pushing the compliance date back four months, from July 1, 2017 to December 1, 2017, so OSHA could review the Rule closely.

Just over two weeks later, OSHA issued another press release announcing that it would be launching its website allowing employers to submit their injury and illness data on August 1, 2017. On August 1, 2017, OSHA made good on that promise and launched its website, which is linked here.

Under the Rule, virtually all employers with twenty or more employees are required to submit their completed Form 300A for 2016 by December 1, 2017. In 2018, employers with twenty or more employees must submit their completed Form 300A for 2017 by July 1, 2018, and those employers with more than 250 employees must submit their Form 300 and 301s by that deadline, as well.

Notably, despite moving forward with the launch of its injury tracking website, OSHA has yet to address the “review” of the Rule it promised in its June 27, 2017 press release. Accordingly, employers would be well-served to wait to submit their 300A data until shortly before the December 1, 2017 deadline to see if OSHA changes course on the Rule before that deadline. Mark your calendars.

Three Needless Deaths: Recognize Confined Space Dangers on Your Job Sites

Contributed by Patrick M. Sanders, July 24, 2017

Construction Site

Supervisor using walkie-talkie at construction site

On July 14, 2017, the U.S. Department of Labor’s Occupational Safety and Health Administration cited a contractor for 10 serious violations after the deaths of three workers who succumbed to toxic gases in a manhole on January 16, 2017.

Preventable safety failures led to the deaths of Elway Gray, a 34-year-old pipe layer, who entered the manhole – a confined space – and quickly became unresponsive; Louis O’Keefe, a 49-year-old laborer, who entered the hole in an attempt to rescue Gray; and Robert Wilson, a 24-year-old equipment operator, who followed to rescue his two fallen coworkers. Two other employees and a firefighter were also exposed to the toxic gases during rescue attempts but survived.

Post-incident atmospheric testing of the confined space revealed lethal levels of carbon monoxide and hydrogen sulfide. OSHA investigators issued Douglas N. Higgins, Inc. and its related contracting company, serious citations, totaling $119,507, in penalties.

The incident-related serious violations included failure to:

  • Purge or ventilate the confined space before entry;
  • Prevent workers from exposure to an asphyxiation hazard;
  • Provide necessary rescue and emergency equipment for employees that were overcome inside a permit-required confined space;
  • Develop and implement a written hazard communication program for a worksite on which employees were exposed to dangerous chemicals and gases;
  • Use a calibrated direct-reading device to test for toxic gases, creating an asphyxiation hazard;
  • Create and document the confined space entry permit;
  • Provide training to employees in the safe performance of their assigned duties in permit-required confined spaces; and
  • Provide a guardra­­­il around the manhole opening, exposing employees to a fall hazard.

Full citations may be found here.

OSHA Area Director Condell Eastmond’s comments were all too familiar: “Three employees needlessly lost their lives and others were injured due to their employer’s failure to follow safe work practices.”

This case should remind all employers that confined spaces within the workplace often present difficult and involved identification, training, written program management and compliance documentation retention issues.

What responsibility do companies have to ensure that their contractors protect their workers?

Those organizations that have a record of previous “serious” violations must be aware OSHA will rigorously enforce employee training, workplace safety information requirements, toxic workplace condition testing and all related rescue and emergency safety equipment regulations and will issue repeat, willful and, in extreme cases, criminal violations, should subsequent violations be documented by OSHA.

OSHA Delays Electronic Report Rule

Contributed by guest author Matthew Horn, June 27, 2017

This morning OSHA issued a press release announcing that it would be delaying the compliance date for its rule requiring most employers to electronically submit their injury and illness data to OSHA. The press release proposes pushing the compliance date back four months, from July 1, 2017 to December 1, 2017. We previously reported on the rule, its requirements, and its significant impact last year.

In the press release, OSHA echoes the Trump administration’s earlier promise to review and reconsider any recently enacted administrative rules and regulations. While the press release makes no mention of abolishing the rule altogether, the language of the press release seems to indicate that such an action may be inevitable. OSHA will likely provide additional guidance on the future of the rule in late November. Stay tuned.

OSHA Violations Lead to Criminal Indictments and $1,475,000.00 Proposed Penalties

Contributed by Patrick Sanders, April 14, 2017

An OSHA investigation concluded on April 11, 2017 found that Atlantic Drain Service Company, Inc. failed to train its employees to recognize and avoid cave-in and collapse hazards, and failed to provide basic safeguards against trench collapse.  Two Atlantic Drain Company employees died on October 21, 2016 in Boston when a trench collapsed which ruptured an adjacent fire hydrant supply line filling the 12 foot deep trench with water in a matter of seconds.

In announcing $1,475,813 in proposed penalties for 18 willful, repeat, serious and other violations, OSHA determined that both Atlantic Drain and its owner (who oversaw the work the day of the fatalities):

  • Failed to install a support system to fully protect employees in the 12’ deep trench from cave-in and an adjacent fire hydrant supply line from collapsing;
  • Failed to remove employees from the hazardous conditions in the trench;
  • Failed to train the workers on how to identify and address hazards associated with trenching and excavation;
  • Failed to provide an escape ladder at all times; and
  • Failed to provide support structures in and next to the trench for overhead hazards.

You can find the full citations here.

OSHA, the US Solicitor, the Inspector General, Boston Police Department Homicide Unit and Suffolk County District Attorney’s Office all coordinated to investigate and obtain indictments of both Atlantic Drain and its owner on two counts each of manslaughter. More information can be read here on the Suffolk County District Attorney’s office website.

“The deaths of these two men could have and should have been prevented” said Galen Blanton, OSHA’s New England Regional Administrator. He also noted that Atlantic Drain had previously been cited by OSHA in 2007 and 2012 for similar trenching violations and knew what safeguards were needed to protect its employees, but apparently chose to ignore its responsibility.

As we start the spring construction season, this case is an important reminder to employers that all employees need to be fully trained on all hazards associated with the work they are preforming, and that workplace supervision needs to be trained and they also need to be supervised to ensure consistent enforcement of all workplace safety standards.

Contractors should remember the walls of an unprotected trench can collapse suddenly and with great force trapping and engulfing workers before they have a chance to react or escape. Contractors must provide effective protection against cave in hazards by properly shoring the trench walls, sloping the soil, or by deploying appropriate protective trench box technology.

Not providing a means of escape (ladders) was an aggravating factor, especially when high pressure firefighting water supply lines were known to be embedded in the immediate vicinity of the trench.

The case should also remind all employers, especially those organizations that have a record of serious violations, that OSHA will rigorously enforce the employee training, workplace safety information, and periodic retraining provisions of all safety regulations with repeat, willful and in extreme cases, criminal violations, should subsequent violations be documented by OSHA.