Category Archives: OSHA

New Safety Regulations for California “Lodging Establishments”

The California Occupational Safety and Health Standards Board (Board) recently approved the “Hotel Housekeeping Musculoskeletal Injury Prevention” standard (the rule) which will require “lodging establishments” to address hazards specific to housekeeping through establishment of a written musculoskeletal injury prevention program (MIPP). The new rule will take effect July 1, 2018.

What Employers are Subject to this New Rule?

The rule only applies to employers that are lodging establishments and that employ housekeeping staff.

As defined under the rule, lodging establishment means an establishment that contains sleeping room accommodations that are rented or otherwise provided to the public, such as hotels, motel, resorts, and bed and breakfast inns.

Housekeeper is defined as an employee who performs housekeeping tasks and may include employees referred to as housekeepers, guest room attendants, room cleaners, maids, and housepersons.

What does the Rule Require?

Pursuant to the rule, lodging establishments must establish and maintain a written MIPP that addresses hazards specific to housekeeping. Employers may comply with this requirement by incorporating the written MIPP into their existing written Injury and Illness Prevent Program (IIPP) or may maintain the MIPP as a separate program.  The written MIPP must be readily accessible during each work shift to employees.

The MIPP must include:

Written Procedures

Lodging establishments must establish written procures that address the following:

  • A system for ensuring appropriate oversight of compliance with the MIPP and for communicating with housekeepers on matters relating to occupational safety and health, including hazards specific to housekeeping.
  • Procedures for identifying and evaluating housekeeping hazards through a worksite evaluation, including:

­     –  Completion of the initial evaluation completed within three months after the effective date;

­                –   Notification to housekeepers of the results of the evaluation in writing;

­                –   Involvement of housekeepers and their union representatives;

­                –   A process for reviewing and updating the worksite evaluation.

  • Procedures for investigating musculoskeletal injuries to housekeepers, including what housekeeping tasks were being performed and whether any identified control measures under the MIPP were available and in use.
  • Methods or procedures for correcting, in a timely manner, hazards identified in the worksite evaluation or investigation into musculoskeletal injuries to housekeepers.
  • Procedures for reviewing and updating the MIPP at least annually.

Training Continue reading New Safety Regulations for California “Lodging Establishments”

PENALTY INCREASE — STOP Before Violating These Laws

The US Department of Labor recently announced that it is increasing the penalties associated with violations of several employment laws.  The penalty increase applies to all penalties assessed after January 2, 2018 for violations that took place after November 2, 2015.

The increase in penalties applies to the following violations, among others:

Law Violation Type Old Maximum Penalty New Maximum Penalty
Family Medical Leave Act Failure to post required FMLA notices $166 $169
Fair Labor Standards Act Willful or repeated violations the FLSA minimum wage and/or overtime provisions $1,925 $1,964
Violations of the FLSA child labor law provisions $12,278 $12,529
Violations of the FLSA child labor law provisions that result in serious injury or death $55,808 $56,947
Willful or repeated violations of the FLSA child labor law provisions that result in serious injury or death $111,616 $113,894
Occupational Safety and Health Act Violations of the OSHA provisions $12,675 $12,934
Willful or repeated violations of the OSHA provisions $126,749 $129,336
Failure to post required OSHA notices $12,675 $12,934
Failure-to-abate violations of the OSHA provisions $12,675 $12,934

In addition to the above-listed laws, the DOL also increased the penalties for violations of several other laws, including the Employee Retirement Income Security Act, the Immigration and Nationality Act, and the Employee Polygraph Protection Act, among others.

For a complete table of the increased penalties, click here.

2017’S TOP 10 OSHA CITATIONS HAVE BEEN RELEASED

Every year, the federal Occupational Safety and Health Administration publishes a list of its top 10 most frequently cited alleged violations from the previous year.  The 2017 top 10 violations were recently announced by Patrick Kapust, Deputy Director of OSHA’s Directorate of Enforcement Programs, at the National Safety Council (NSC) Congress & Expo 2017 in Indianapolis:

  1. Fall Protection in Construction — 6,072 violations (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).
  2. Hazard Communication — 4,176 violations (includes failure to have a written hazard communication program and failure to provide employee access to safety data sheets).
  3. Scaffolding — 3,288 violations (includes improper access to surfaces and lack of guardrails).
  4. Respiratory Protection — 3,097 violations (includes failure to establish a written respiratory protection program and failure to provide medical evaluations.).
  5. Lockout/Tagout — 2,877 violations (includes failure to provide employee training and failure to conduct periodic inspections).
  6. Ladders in Construction — 2,241 violations (includes improper use of ladders, damaged ladders, and using the top step).
  7. Powered Industrial Trucks — 2,162 violations (includes failure to provide employee training and failure to provide refresher training).
  8. Machine Guarding — 1,933 violations (includes failure to guard points of operation).
  9. Fall Protection—Training Requirements — 1,523 violations (includes failure to train employees in identifying fall hazards and proper use of fall protection equipment).
  10. Electrical — Wiring Methods — 1,405 violations (includes using temporary wiring in lieu of permanent wiring).

Take Home For Employers

According to OSHA, the violations on this list rarely change from year to year; therefore OSHA urges employers to consider this list a starting point for their workplace safety program.

2016’s Top 10 OSHA Citations Have Been Released

Every year, the federal Occupational Safety and Health Administration publishes a list of its top 10 most frequently cited alleged violations from the previous year and the 2016 top 10 violations have recently been released:

  1. Fall protection
  2. Hazard communication
  3. Scaffolds
  4. Respiratory protection
  5. Lockout/tagout
  6. Powered industrial trucks
  7. Ladders
  8. Machine guarding
  9. Electrical wiring
  10. Electrical, general requirements

Take Home For Employers

According to OSHA, the violations on this list rarely change from year to year; therefore OSHA urges employers to consider this list a starting point for their workplace safety program.

Coming Soon to a California Workplace near you — Indoor Heat Regulations

Last year, California governor Jerry Brown signed Senate Bill 1167 into law. This law, which went into effect on January 1, 2017, instructed Cal/OSHA to prepare heat illness and injury prevention standards for indoor workplaces by January 1, 2019.

While the official regulations are yet to be drafted, in February of 2016, Cal/OSHA submitted a proposed draft of the language of a new regulation during an advisory meeting, which may give California employers some insight as to components of the yet-to-be drafted regulations. Some key components of this draft language included:

  • The regulation would apply to (1) indoor places of employment where the dry bulb temperature exceeds 90 degrees or (2) where employees perform moderate, heavy, or very heavy work and the dry bulb temperature exceeds 80 degrees.
  • The Division would evaluate what type of clothing employees are wearing
  • The Division would evaluate the type of work performed by employees. The Division would critically analyze if employees perform moderate, heavy, or very heavy work to determine whether there is a violation of heat illness.
  • The Division would be more critical of high radiant heat work areas like foundries, brick-firing and ceramic plants, glass factories, vehicle manufacturing plants, rubber manufacturing plants, electrical utility rooms, electric power cogeneration facilities, boiler rooms, industrial scale bakeries, commercial kitchens, industrial scale laundries, food canneries, chemical plants, mining sites, smelters, and steam tunnels.
  • The Division would expect all employers to have a Heat Illness Prevention Plan that specifically identifies Indoor Heat Illness Prevention including procedures to involve employees in developing and implementing the plan, procedures to identify heat hazards, rest and hydration procedures, first-aid and emergency procedures, engineering and administrative control measures used to control indoor heat, and training programs.

While the regulations are not written, it is recommended that California employers start reviewing their indoor work environments to determine which areas of the workplace (if any) may be subject to these regulations (based on the above standards) and start evaluating how their operations may be impacted by an indoor heat stress rule.

Preventing Retaliation Is a Priority for OSHA

Earlier this month, OSHA released guidance materials (“Recommended Practices for Anti-Retaliation Programs”) intended to help employers create workplaces that are free of retaliation. These materials are a part of the OSHA Whistleblower Protection Program, which protect employees against retaliation for raising health, safety, and potential violation concerns, and provide a framework to help employers establish an anti-retaliation program.

The materials explain what OSHA dubs the “Five Key Elements to an Effective Anti-Retaliation Program”:

  1. Management leadership, commitment, and accountability
  2. System for listening to and resolving employees’ safety and compliance concerns
  3. System for receiving and responding to reports of retaliation
  4. Anti-retaliation training for employees and managers
  5. Program oversight

and also provide steps on how to implement an anti-retaliation program.

OSHA warns that the “document is advisory in nature and informational in content. It is not mandatory for employers, and does not interpret or create legal obligations.” In addition, OSHA clarifies that “this guidance is not intended to advise employees about their rights or protections under any whistleblower statute enforced by OSHA or any other government agency.”

OSHA Updates Walking-Working Surfaces Rule

OSHA has issued a final rule which updates the general industry Walking-Working Surfaces standards specific to slip, trip, and fall hazards. The final rule addresses the following topics:

  • Establishing new and revised standards addressing fixed ladders, rope descent systems, and fall protection systems;
  • Establishing requirements on the design, performance and use of personal fall protection systems; and
  • Requiring employers to train employees on identifying and minimizing fall hazards, using fall protection systems and maintaining, inspecting and storing fall protection equipment.

Under the new rule, employers are able to choose (from a list of acceptable options) the fall protection system that works best for their workplace, instead of simply requiring the use of guardrail systems. Acceptable options include personal fall arrest systems, safety new systems, ladder safety systems, travel restraint and work position systems.

The new rule also allows employers to use Rope Descent Systems (RDS) and adds a 300-foot height limit for their use. In order to use these systems, employers must affirm in writing that permanent building anchorages used for RDS have been tested, certified, and maintained as capable of supporting 5,000 pounds for each worker attached.

In addition, the new rule sets standards for ladders. Specifically, all ladders must be able to support their maximum intended load. Mobile ladder stands and platforms must be able to support four times their maximum intended load. With respect to fixed ladders that extend more than 24 feet, employers must also work towards replacing cages or wells with safety or personal fall arrest systems.

The rules also set the following standards for portable ladders:

  • The rungs and steps on portable ladders must be slip resistant;
  • portable ladders used on slippery surfaces must be secured and stabilized;
  • portable ladders cannot be moved, shifted, or extended while a worker is on them;
  • top steps and caps of stepladders cannot be used as steps;
  • portable ladders cannot be fastened together to provide added length unless designed for such use; and
  • portable ladders cannot be placed on boxes, barrels, or other unstable bases to obtain added height.

Finally, employers must inspect each ladder before initial use in a work shift to identify defects that could cause injury.

The final rule becomes effective on January 17, 2017. Following the effective date, employers should be aware that some requirements in the new rule have compliance dates after the effective date including:

  • Ensuring exposed workers are trained on fall hazards and the use of fall protection equipment (6 months),
  • Inspecting and certifying permanent anchorages for rope descent systems (1 year),
  • Installing personal fall arrest or ladder safety systems on new fixed ladders over 24 feet and on replacement ladders/ladder sections, including fixed ladders on outdoor advertising structures (2 years),
  • Ensuring existing fixed ladders over 24 feet, including those on outdoor advertising structures, are equipped with a cage, well, personal fall arrest system, or ladder safety system (2 years), and
  • Replacing cages and wells (used as fall protection) with ladder safety or personal fall arrest systems on all fixed ladders over 24 feet (20 years).

It is recommended that all employers review the new rule and start working to meet the above-listed compliance deadlines.

Cal/OSHA Takes a stand against Workplace Violence in the Healthcare industry

A recently-completed national study found health care workers are at a higher risk of workplace violence than the average worker in another industry. In addition, federal OSHA reported that from 2002 to 2013, the rate of serious workplace violence incidents (those requiring days off for an injured worker to recuperate) was more than four times greater in healthcare than in private industry on average.

In response to these findings, the California Occupational Safety and Health Standards Board (Cal/OSHA) unanimously passed a new General Industry Safety Order entitled “Workplace Violence Prevention in Health Care”.

These new regulations, which go into effect on April 1, 2017, affect “healthcare employers”, which is broadly defined to include:

  • “healthcare facilities” (meaning any facility, place, or building that is organized, maintained, and operated for the diagnosis, care, prevention, or treatment of human illness, physical or mental, including convalescence and rehabilitation and including care during and after pregnancy, or for any one or more of these purposes, for one or more persons, to which the persons are admitted for a 24-hour stay or longer.”)
  • home health care and home-based hospices,
  • emergency medical services and medical transports,
  • drug treatment programs and
  • outpatient medical services to those incarcerated in correctional and detention settings.

Under the new regulations, healthcare employers are tasked with taking 4 steps (discussed below) to eliminate “workplace violence”. For purposes of these regulations, “workplace violence” is defined as: any act of violence or threat of violence that occurs at the work site – excluding lawful acts of self-defense or defense of others. Workplace violence includes the following:

  • The threat or use of physical force against an employee that results in, or has a high likelihood of resulting in, injury, psychological trauma, or stress, regardless of whether the employee sustains an injury;
  • An incident involving the threat or use of a firearm or other dangerous weapon, including the use of common objects as weapons, regardless of whether the employee sustains an injury;
  • Four workplace violence types:
    • “Type 1 violence” means workplace violence committed by a person who has no legitimate business at the work site, and includes violent acts by anyone who enters the workplace with the intent to commit a crime.
    • “Type 2 violence” means workplace violence directed at employees by customers, clients, patients, students, inmates, or visitors or other individuals accompanying a patient.
    • “Type 3 violence” means workplace violence against an employee by a present or former employee, supervisor, or manager.
    • “Type 4 violence” means workplace violence committed in the workplace by someone who does not work there, but has or is known to have had a personal relationship with an employee.

Develop a Workplace Violence Prevention Plan

Under the new regulations, healthcare employers are required to establish, implement and maintain an effective workplace violence prevention plan for all units of the workplace. This plan must be in writing and made available to all employees. In addition, the plan must include all of the following components:

  • Identify (by name or job title) the persons responsible for implementing the Plan;
  • Effective procedures to obtain the active involvement of employees and their representatives in developing, implementing, and reviewing the Plan, including their participation in identifying, evaluating, and correcting workplace violence hazards, designing and implementing training, and reporting and investigating workplace violence incidents;
  • Methods the employer will use to coordinate implementation of the Plan with other employers whose employees work in the same health care facility, service, or operation, to ensure that those employers and employees understand their respective roles as provided in the Plan;
  • Effective procedures for obtaining assistance from the appropriate law enforcement agency during all work shifts;
  • Effective procedures for the employer to accept and respond to reports of workplace violence and to prohibit retaliation against an employee who makes such a report;
  • Procedures to ensure that supervisory and non-supervisory employees comply with the Plan;
  • Procedures to communicate with employees regarding workplace violence matters;
  • Procedures to develop and provide training to employees that addresses workplace violence risks employees are reasonably anticipated to encounter on the job;
  • Assessment procedures to identify and evaluate environmental and community-based risk factors for each facility, unit, service, or operation, which shall include a review of all workplace violence incidents that occurred in the facility, service, or operation within the previous year, whether or not an injury occurred;
  • Procedures to identify and evaluate patient-specific risk factors and assess visitors or other persons who are not employees;
  • Procedures to correct workplace violence hazards in a timely manner; and
  • Procedures for post-incident response and investigation.

Finally, healthcare employers are required to review the plan and its effectiveness on an annual basis and correct any problems.

Maintain A “Violent Incident Log”

Employers are also required to maintain a “violent incident log” which records every incident, post-incident response, and workplace violence injury investigation in detail.

At a minimum the log must contain, the following:

  • The date, time, specific location, and department of the incident;
  • A detailed description of the incident;
  • A classification of who committed the violence;
  • A classification of circumstances at the time of the incident;
  • A classification of where the incident occurred;
  • The type of incident;
  • The consequences of the incident; and
  • Contact and other information about the person completing the log.

Employee Training

Employers are also required to train their employees on how to respond to the workplace violence risks that employees are “reasonably anticipated” to encounter in the workplace. This training must be “active training”, where the employees are actively involved in

  • Developing training program and training materials,
  • Participating in training sessions, and
  • Reviewing and revising the training program.

Employers required to conduct the training at various times, including:

  • When the plan is first established and
  • When an employee is newly hired or newly assigned to perform duties for which the training was not previously provided;
  • When new equipment or work practices are introduced; and
  • When a new or previously unrecognized workplace violence hazard has been identified.

Recordkeeping Requirements

Employers will be required to maintain records relating to their compliance with this new regulation – including:

  • Records of workplace violence hazard identification, evaluation, and correction,
  • Training records, and
  • Records of violent incidents.

Records must be made available to Cal/OSHA and employees upon request.

Next steps for healthcare employers

It is recommended that healthcare employers review the new regulations and start taking steps towards complying with the new requirements.

OSHA Issues New guidance regarding incentive, disciplinary and drug-testing programs

On October 19, 2016, OSHA published a memorandum interpreting the new anti-retaliation provisions of the new final rule – “Improve Tracking of Workplace of Injuries and Illnesses.” In addition, OHSA also published additional guidance materials which provided example scenarios of incentive, disciplinary and drug-testing programs and how the new rule may be interpreted to those scenarios.

Under the new rule (which goes into effect on January 1, 2017), employers are required to establish reasonable procedures for reporting a work-related injury or illness. The new rule also prohibits employers from retaliating or taking adverse action against employees for reporting work-related injuries or illnesses.

With the new rule clearly prohibiting retaliation, there was concern regarding how the new rule would impact incentive, disciplinary and drug-testing programs. In the newly released materials, OSHA expressly clarifies that “the rule does not ban appropriate disciplinary, incentive, or drug-testing programs” and (through the example scenarios) explains what programs would be considered “appropriate.”

Disciplinary Programs

With respect to disciplinary programs, OSHA has stated that “the rule does not prohibit disciplinary programs. However, employers must not use disciplinary action, or the threat of disciplinary action, to retaliate against an employee for reporting an injury or illness.”

According to OSHA, the following types of disciplinary programs would violate the new rule:

  • Automatically suspending an employee who reports a work-related injury.
  • Assigning employees points that have negative employment consequences for reporting a work-related injury.
  • Pre-textual discipline, such as disciplining an employee for allegedly violating a safety rule but the real basis for discipline was the injury or illness report. Here, OSHA would look to see if other employees are also disciplined for violating the same safety rule in cases where a violation of that safety rule does not result in any injury.
  • Rigid prompt reporting requirements, such as disciplining for not immediately reporting a work-related injury in cases where the employee has not yet had time to identify a work-related injury has occurred.

Conversely, OSHA clarified that the following disciplinary programs would be permissible:

  • an employer who disciplines an employee for by-passing a guard, contrary to the employer’s safety policies, even when that employee is injured would not be a violation of the new rule
  • an employer who disciplines employees for not reporting work-related injuries “immediately” or “as soon as practicable” is permissible where employers allow sufficient time for employees to realize they have suffered a work-related injury.

Finally, employers must remember one thing with any disciplinary program, it must be applied consistently to all employees.

Incentive Programs

With respect to incentive programs, OSHA has stated that “employers must not use incentive programs in a way that penalizes workers for reporting work-related injuries or illness.”  Instead, OSHA recommends incentive programs that reward for employee participation in safety program activities and evaluations, completion of employee training, and safety walkthroughs and identification of hazards.

Drug-Testing Programs

With respect to drug testing programs, OSHA has stated that “drug testing conducted under a state worker’s compensation law or other state or federal law” does not violate the new rule. OSHA also clarifies that when evaluating a drug testing program, its “central inquiry will be whether the employer had a reasonable basis for believing that drug use by the reporting employee could have contributed to the injury or illness.”

For example, an employee who drug tests an employee who reported an injury he sustained as by-stander being drug tested would be in violation of the rule because the injury could not possibly have been caused by drug use. Conversely, drug testing an employee who is injured when he inadvertently drives his forklift into another piece of equipment would not be in violation of the rule because the employees “conduct – the manner in which he operated the forklift – contributed to his injury, and because drug use can affect conduct.” “Drug testing an employee who engaged in conduct that caused an injury is objectively reasonable because conduct can be affected by drug use.”

Finally, OSHA clarified that “OSHA will consider whether the drug test is capable of measuring impairment at the time the injury or illness occurred where such a test is available.  Therefore, at this time, OSHA may consider this factor for tests that measure alcohol use, but not for tests that measure the use of any other drugs.”

Recommendation for employers

It is recommended that employers who have these type of programs in place review the guidance materials released by OSHA and determine whether their programs comply with the new rule.

Special Zika Virus Guidance Issued by OSHA

The Occupational Safety and Health Administration (OSHA) recently released guidance materials (“Zika Virus Protection for Outdoor Workers – OSHA Quick Card” and “Interim Guidance for Protecting Workers from Occupational Exposure to Zika Virus – OSHA Fact Sheet”) advising employers and workers how to prevent exposure to the Zika virus in the workplace. The Zika virus is a mosquito-borne virus; therefore, an employer’s outdoor workers may be at risk of contracting this virus.

These guidance materials set forth general practices employers and workers can do to reduce risk of exposure to the Zika virus in their workplace. These techniques include the following:

  • Employers should inform workers about their risks of exposure.
  • Employers should provide workers insect repellants and encourage their use. Workers should use the repellants.
  • Employers should provide workers with clothing that covers their hands, arms, legs, and other exposed skin and encourage them to wear the clothing. They also should consider providing workers with hats with mosquito netting that covers the neck and face. Workers should wear the provided clothing, as well as socks that cover the ankles and lower legs.
  • In warm weather, employers should encourage workers to wear lightweight, loose-fitting clothing, which provides a barrier to mosquitos. Workers should wear this type of clothing.
  • Employers and workers should eliminate sources of standing water (e.g., tires, buckets, cans, bottles, and barrels), which are considered mosquito breeding areas. Employers should train workers to recognize the importance of getting rid of these breeding areas at worksites.
  • If requested, employers should consider reassigning to indoor tasks any female worker who indicates she is pregnant or may become pregnant, as well as any male worker who has a sexual partner who is pregnant or may become pregnant. Workers in these circumstances should talk to their supervisors about outdoor work assignments.
  • Workers should seek medical attention “promptly” if symptoms from infection develop.

It is recommended that all employers review these guidelines to determine the risks of their outdoor workers contracting Zika virus.