Distracted driving is the number one cause of workplace deaths in the United States. OSHA has partnered with the National Safety Council to call employers’ attention to this issue and urge the adoption of safe driving policies. Failure to adopt and enforce such policies in the workplace leads to tragic results and OSHA has made it perfectly clear that employers who do not take this issue seriously should expect OSHA citations. On its distracted driving webpage, the agency has stated that employers “have a responsibility and legal obligation to have a clear, unequivocal, and enforced policy against texting while driving.”
But to truly protect your employees from the hazards of distracted driving, your policy should cover more than just texting. A comprehensive policy should cover all employees, both handheld and hands-free devices, company vehicles, company cell phones and all work-related communications. All employees should be forbidden to use cell phones, hands-free devices, and any other mobile electronics while operating a vehicle when:
- the vehicle is owned, leased, or rented by the employer
- a personal motor vehicle is used in connection with company business
- the motor vehicle is on the employer’s property
- the cell phone or mobile electronic device is owned or leased by the employer
- the cell phone or mobile electronic device is used to conduct company business
Employers should strongly discourage distracted driving by incorporating written safe driving policies into employee handbooks, providing training on these policies during worker orientation, and providing annual refresher training. Safe communication practices should be put in place such as established procedures, times, and places for drivers’ safe use of cell phones and other electronic devices for communicating with supervisors, customers, and others. To the extent that the employer has any programs in place that could incentivize employees to use cell phones or other electronic devices while driving, they should be eliminated.
Finally, safe driving policies must be enforced – it is not enough simply to write a policy and provide employee training. As we have all become so dependent on our cell phones and other mobile electronic devices, it is likely that some employees will resist or simply ignore these policies, but enforcement is necessary to truly improve employee safety. Accordingly, employers should reprimand employees who violate safe driving policies and those reprimands should involve serious penalties, including, where appropriate, termination. There is no way to protect employees from every hazard they may encounter on the road, but implementing a strong safe driving program will go a long way towards decreasing the likelihood of a workplace tragedy on the road.
For many years, OSHA has stressed the need for enhanced workplace violence policies to protect health care and social service workers. The agency released guidelines for workplace violence prevention in the health care and social services industries in both 1996 and 2004, recognizing that caregivers are at an increased risk of unpredictable, violent behavior from the very people whom they provide care to. In spite of these efforts, violence in health care and social service workplaces continues to rise. In 2013, the Bureau of Labor Statistics reported more than 23,000 serious injuries due to assault at work. More than 70 percent of those assaults took place in health care or social service settings. Health care and social service workers are almost four times more likely than the average private sector worker to be injured as a result of an assault.
Re-emphasizing its commitment to reducing this risk, OSHA published its revised Guidelines for Preventing Workplace Violence for Healthcare and Social Service Workers on April 2, 2015. The revised guidelines are significantly more comprehensive than those released by the agency in the past, and they include a number of tools, such as a workplace violence prevention program checklist, to enable employers to more easily navigate and implement OSHA’s suggested strategies.
The new guidance calls for a five-part program consisting of:
- management commitment and worker participation—OSHA deems management responsible for controlling hazards by, among other things, urging all levels of management to become deeply involved in all aspects of the workplace violence prevention program, and worker participation should be required because workers can help identify and assess workplace hazards;
- worksite analysis and hazard identification—management and workers are called upon to work together to assess records, existing procedures, and operations for jobs, employee surveys, and workplace security analyses;
- hazard prevention and control—after the worksite analysis is complete, employers should take appropriate steps to prevent or control the identified hazards and periodically evaluate the effectiveness of the chosen controls and improve, expand, or update them, as needed;
- safety and health training—all workers (including contractors and temporary employees) should receive training on the workplace violence prevention program at least annually and, in particularly high-risk settings, as often as monthly or quarterly to effectively reach and inform all workers; and
- recordkeeping and program evaluation—OSHA logs of Work-Related Injuries and Illnesses (OSHA Form 300), worker injury reports, information regarding patients with a history of violence, and other documents reflecting trends or patterns at the workplace should be studied and the effectiveness of the workplace violence prevention program should be frequently evaluated and improved, as necessary.
Although there is no formal OSHA standard regarding workplace violence, the agency has invested significant resources into providing health care and social service employers with an all-encompassing set of guidelines to enable these employers to create high-quality workplace violence prevention programs. OSHA has already announced that it intends to increase enforcement efforts in the health care and social services industries in the coming year. If OSHA conducts an inspection and finds that an employer’s workplace violence prevention program is lacking, the agency could issue the employer a citation under the General Duty Clause for failing to provide workers with a safe and healthy work environment.
Accordingly, health care and social service employers are well advised to review OSHA’s new guidelines and to work closely with employees to develop a program appropriate for their worksites. Taking this step will provide critically important protection for employees, increase employee engagement in safety and health efforts, and reduce the possibility of receiving a citation for an inadequate workplace violence prevention program.
I recently authored Epstein Becker Green’s March issue of Take 5 in which I outline actionable steps that employers can take to improve safety and avoid costly OSHA citations.
Following is an excerpt:
The Occupational Safety and Health Administration (“OSHA”) was created by Congress to ensure safe and healthful working conditions for employees. OSHA establishes standards and provides training and compliance assistance. It also enforces its standards with investigations and citations.
Although it’s impossible for employers to mitigate against every conceivable hazard in the workplace, there are five critical steps that every employer should take to improve safety in the workplace—and avoid costly OSHA citations. Read on for the steps:
- Conduct an Internal Safety and Health Audit Under Attorney-Client Privilege
- Create a Strong Safety Culture
- Ensure That Safety and Health Documentation Is Current and Well Communicated
- Train Employees in Safety and Health, Regularly and Comprehensively
- Protect Contractors and Temporary Workers, Too
Click here to read the full Take 5 online.
President Obama’s recent budget proposal to Congress includes a proposed $592.1 million budget for OSHA this fiscal year — a 7 percent increase from fiscal 2015. Although gaining approval of the proposal will surely be an uphill battle, which may be insurmountable in light of opposition from Republican lawmakers who oversee the appropriations process, the content of OSHA’s budget justification provides strong signals of its agenda for the coming year.
First, OSHA seeks to add 90 full-time positions to the agency for fiscal 2016. Sixty of the new positions would be assigned to enforcement activities – forty of the new enforcement employees would be assigned to inspect the anticipated 50,000 – 75,000 new injury and hospitalization reports the agency expects to receive in fiscal 2016 in response to new reporting requirements that took effect on January 1, 2015 (the new reporting regime requires employers to report to OSHA within 24 hours any work-related hospital admissions, amputations, or eye losses). The other twenty enforcement employees would be assigned to high hazard, complex inspections, such as inspections of worksites where the Process Safety Management standard applies or musculoskeletal disorders may be at issue. OSHA states that without this increase in manpower, it will be forced to eliminate many planned inspections of high hazard workplaces, shifting its inspection priorities to responding to injury and hospitalization reports.
Next OSHA urged Congress to increase the statutory civil penalties for workplace health and safety violations. The OSH Act is one of only four statutes not covered by the Federal Civil Penalties Inflation Adjustment Act, which includes a mechanism to increase fixed penalties to keep pace with inflation. Without the benefit of this mechanism, OSHA has only been able to increase its civil monetary penalties once in the last forty years. Although OSHA was not explicit in its budget justification, it appears the agency seeks funding for its efforts to increase the monetary civil penalties that the agency can impose in its citations in an effort to increase their deterrent effect.
Even if OSHA receives none of the additional funding it seeks, employers should take note of the clear signals that OSHA has given employers of its intentions in its budget justification:
- OSHA fully intends to respond to the thousands of injuries it expects will be reported in response to the new recordkeeping rule. Employers must make certain that their safety and human resources professionals know when and how to appropriately report injuries to OSHA and should expect OSHA to act upon these reports.
- OSHA is likely to impose greater penalties, even in the absence of an increase to the statutory penalties currently available to the agency. OSHA inspectors do not consistently impose the maximum penalties available to them when issuing citations under the current penalty scheme. Having clearly expressed its dissatisfaction with the deterrent effect of its penalties, OSHA will likely urge its compliance officers to impose the highest possible penalties when issuing citations going forward.
- High hazard workplaces remain a top priority for OSHA. The agency will, to the extent possible, continue to deploy its inspectors to businesses with high injury and illness rates, worksites subject to the Process Safety Management standard, and worksites presenting musculoskeletal issues.
OSHA has been very aggressive in its enforcement efforts and in seeking large penalties over the last several months. The initiatives it has outlined in its budget justification signal that this will not change, and in fact, will become more intense in coming months. Employers are well-advised to learn their rights and best practices for preparing for an OSHA Inspection. Moreover, employers with worksites that present any of the high hazard risks outlined above should seriously consider engaging counsel to conduct an attorney-client privileged OSHA compliance audit. The Occupational Safety and Health Review Commission has held that compliance audit reports created by third party experts are protected from disclosure to OSHA when they are conducted to aid counsel in providing compliance advice. By conducting such an audit, employers can assess for themselves whether they should be concerned when OSHA comes knocking and if so, improve safety practices and equipment on their own initiative. Such actions demonstrate an employer’s commitment to safety, while protecting against the ominous possibility of OSHA using its internal audit report as a guide to potential health and safety issues in the workplace.
Valerie Butera, Member of the Firm in the Labor and Employment practice, will present a complimentary webinar, hosted by Midwest Employers Casualty Company, on January 27 at 11:00 a.m. EST titled “OSHA Forecast: Developments to Watch in 2015 and Beyond.”
This webinar will delve into OSHA issues that will impact a wide range of industries in 2015. In addition to a greater focus on enforcements and inspections, changes will occur for recording injuries and illnesses in the OSHA 300 Injury and Illness Recordkeeping log as well as reporting changes of severe injuries or illnesses.
For more information and to register for this webinar, click here.
On January 11, 2015, a multi-vehicle pile-up took place in west Michigan involving nearly 200 vehicles, including at least one truck carrying fireworks, and another carrying formic acid. The formic acid caused a HAZMAT event and the fireworks exploded in the truck that was carrying them. Many were badly injured in the accident, including two firefighters who responded to the exploding fireworks. Tragically, the driver of another semi-truck was killed.
Winter weather and hazardous driving conditions were significant causal factors in the pile-up. Although OSHA does not have regulations specifically addressing winter driving, the agency does provide guidance for employers to help ensure the safety of employees engaged in this work. Specifically, OSHA urges employers to take the following measures:
- Train drivers how to recognize winter driving hazards, such as snow and ice-covered roads
- Train drivers on the safeguards they should take in winter driving conditions
- Ensure that drivers are properly licensed for the vehicles they operate
- Create and enforce driver safety policies
- Implement an effective maintenance program for all vehicles and mechanized equipment that workers are required to operate
- Ensure that properly trained employees inspect the following vehicle systems to determine if they are working properly:
- Brakes – Brakes should provide even and balanced braking. Also check that brake fluid is at the right level.
- Cooling system – Ensure a proper mixture of 50/50 antifreeze and water in the cooling system at the proper level.
- Electrical system – Check the ignition system and ensure that the battery is fully charged and that the connections are clean. Check that the alternator belt is in good condition with proper tension.
- Engine – Inspect all engine systems.
- Exhaust System – Check exhaust for leaks and that all clamps and hangers are snug.
- Tires – Check for proper tread depth and no signs of damage or uneven wear. Check for proper tire inflation.
- Oil – Check that oil is at proper level.
- Visibility Systems – Inspect all exterior lights, defrosters, and wipers. Install winter windshield wipers.
- Ensure that there is an emergency kit in every vehicle
In order to keep employees safe on the road, employers should also quiz employees to ensure that they understood the training. Results of the quizzes and any other training-related documents should be kept on file. All paperwork related to vehicle maintenance should be kept on file as well. Even though there are no OSHA regulations specific to winter driving, and employers certainly cannot control everything, they must always provide the safest possible work for their employees and OSHA can issue citations where it finds that an employer has failed to do so – even where there are no specific standards regulating the potential hazard. By taking these simple measures, employers can demonstrate their commitment to safety to both their employees and to OSHA.
Retailers, get ready for OSHA’s revised recordkeeping and reporting rules, effective January 1, 2015.
As I note in my Act Now Advisory—“What Do OSHA’s Revised Recordkeeping and Reporting Rules Really Mean for Retailers?”—several additional retail industries will be required to keep records of serious occupational injuries and illnesses, and several are no longer subject to the rules. The new reporting requirements apply to all retailers, even those included in the exempt list.
See the advisory for more information – below is an excerpt of my tips for retail employers:
- Train your safety and human resource professionals and your managers on the new reporting requirements. Again, all retailers must promptly report to OSHA any fatalities, amputations, loss of eye incidents, or in-patient hospitalizations.
- Be aware that you can report to OSHA by:
- Calling OSHA’s free and confidential number: 1-800-321-OSHA (6742)
- Calling your closest Area Office during normal business hours
- Using the new online form that will soon be available on OSHA’s website
- If you have retail establishments in one or more of the jurisdictions with a state plan, contact the state plan’s office to determine when you must comply with the rule and if the state plans’ reporting rules have additional requirements. OSHA has encouraged state plans to require compliance by January 1 but recognizes that not all plans will be able to do so.
- Contact counsel for advice on how to best navigate an OSHA inspection to ensure your preparedness should OSHA decide to investigate the circumstances leading to a reportable injury or illness.
- To the extent that any of these newly reportable incidents have taken place at any of your retail establishments in the past, review the details of the incident and audit that facility and others that you believe may pose safety concerns. Identify safety hazards and address any possible health or safety hazards that you discover.
- If you are among the newly identified retail industries required to complete OSHA’s injury and illness recordkeeping, seek assistance from counsel in navigating these very complex requirements. Ensure that safety and human resource professionals in your organization are properly trained and fully understand how and when to record an occupational illness or injury in your OSHA logs.
- Retailers that have already been subject to the recordkeeping standard should review their logs to spot potential trouble spots, and provide refresher training to safety and human resource professionals in order to help ensure full compliance with the rules.
See below for a recording of my recent webinar, “OSHA Forecast: Developments to Watch in 2015 and Beyond.”
As I discuss, in 2015, many more industries will for the first time be required by OSHA to record injuries and illnesses in the OSHA 300 Injury and Illness Recordkeeping log. The reporting of severe injuries or illnesses is also changing, and we anticipate a greater focus on enforcements and inspections.
- Where we are now and the direction of OSHA in 2015
- Recording and recordkeeping requirements
- Whistleblowing and its impact on your business
- Preparing for increased OSHA inspections of incidents
- Rulemaking and potential changes in current programs
- Ebola and other infectious diseases
The video is also available on Epstein Becker Green’s Youtube channel—click here to download the slides.
I am pleased to announce that LexisNexis has recognized this blog as one of the “Top Blogs for Workers’ Compensation and Workplace Issues” for 2014.
According to LexisNexis, this year’s honorees include “the best of the best—those legal blogs that provide insightful analysis and those business-oriented blogs that offer valuable tidbits of practical information and best practice tips for employers, insurers, risk managers and other professionals.”
In recognizing our blog, LexisNexis notes that “members of the practice group offer a plethora of posts on workplace safety and related concerns” and highlights several recent blog entries including posts about Black Friday safety policies and issues for retailers, employer strategies to address Ebola in the workplace, and OSHA’s new guidance on hospital safety issues, among others.
We are very honored that others value the content of our blog. We know that employee safety is of utmost concern to most employers and those issues, combined with increased regulatory and enforcement pressures from the Occupational Health & Safety Administration, mean employers are seeking information they can use to help prepare and protect their businesses, now more than ever.
Our blog can be the first step in gathering important information. Our posts are an extension of the full gamut of occupational safety and health law services my colleagues and I in Epstein Becker Green’s Occupational Safety and Health (OSHA) practice offer to a diverse range of clients throughout the United States, from counseling on safety and health matters to representing management in safety and health litigation arising out of enforcement actions in both federal and state OSHA-administered plans.
Please stay tuned for more and be sure to subscribe via email – see the right-hand margin to enter your email address. Thank you!
On November 21, 2014, the Department of Labor released its Agency Rule List, which provides the status of all rulemaking efforts at each of its agencies. OSHA dominated the list of regulatory activity in the Department, listing 26 regulations in the prerule, proposed rule, and final rule stages.
Of these 26 items, OSHA announced that its top regulatory priorities include:
- Efforts to control exposure to crystalline silica
- Enhancements to current infectious disease protocols in healthcare and other high risk environments
- Issuance of a final rule modernizing its reporting system for occupational injuries and illnesses, requiring electronic submission of injury and illness survey data, which, notably, would be made publicly available
- Issuance of final rules regarding procedures for handling whistleblower complaints under 9 of the 22 federal statutes which include whistleblower protection provisions that OSHA has been tasked with investigating and enforcing
Hidden among the collection of proposed regulatory actions is OSHA’s plan to issue a Notice of Proposed Rulemaking by the end of the year seeking to amend its recordkeeping regulations to clarify that the duty to make and maintain accurate records of work-related injuries and illnesses is an ongoing obligation. This proposal is clearly an attempt to circumvent the Volks decision by the D.C. Circuit Court of Appeals (AKM LLC dba Volks Constructors v. Secretary of Labor, 675 F.3d 752 (D.C. Cir. 2012)), in which the court held that a plain reading of the six-month statute of limitations in the OSH Act limits the period of time in which OSHA can issue a recordkeeping citation to six months. Otherwise, the court reasoned, the Secretary of Labor could rely upon document retention rules contained within various OSHA standards to tack on extra time to the statute of limitations, potentially leading to absurd results and giving the Secretary the leeway to extend the statute of limitations forever, simply by adding a never-ending document retention requirement to any given recordkeeping rule.
Finally, and predictably, two longstanding controversial topics were relegated to the agency’s long term action list. Both the proposed stand-alone combustible dust standard and updates to the recently amended Hazard Communication Standard (which includes the undefined term “combustible dust” within the definition of “hazardous chemicals” regulated under the standard) have been added to the list, indicating that regulated industries must continue waiting for a clear and intelligible definition of the term. And the so-called “I2P2” (Injury and Illness Prevention Program) has also been shelved for an indeterminate period of time.