Six practical tips and strategies for employers in virtually any industry
As many employers know, OSHA penalties can be costly. For this and many other reasons, upon receiving an OSHA citation, employers should consider their rights and resist any temptation to simply pay the citation and move on to “more important” things.
But many employers never even receive an OSHA citation. Why is this? Is it luck? Or is it because the employer implemented well-thought and planned systems and strategies specifically designed to promote the health and safety of its workers while, at the same, minimizing if not entirely eliminating OSHA liability and exposure? This article asserts it is likely the latter — and provides six practical tips and strategies that employers in virtually any industry may implement.
Tip 1: Perform a Self-Assessment
It may seem obvious, but the first step to minimize any future OSHA liability is to focus your attention on what OSHA cares about: safety. Take an in-depth look at your organization and assess how you are doing in terms of workplace safety. For example, have you received any OSHA citations? What have you done to prevent future citations? Do you have a comprehensive written safety and health program, and is the program effective? In other words, have your safety policies and procedures been communicated to your employees, and are your employees following them? Has there been an increase or decrease in workplace injuries, if any? These are all critical questions. This is the starting point.
Tip 2: Create and Implement an Effective Safety and Health Program
It is critical that you create an effective written safety program, one that addresses (at a minimum) the safety hazards your employees are most likely to face on a daily basis. Also important is communicating the program policies and procedures to your employees, providing employees with safety training, conducting workplace inspections to ensure compliance, and disciplining employees for any misconduct. Moreover, everything must be in writing, documented, and records must be maintained. This would include, for example, distributing all work rules to employees in writing, maintaining any sign-in sheets generated in connection with any safety training, and maintaining all disciplinary records. Be of the mindset: if it is not written down, it did not happen.
OSHA’s “Safety and Health Program Management Guidelines” (published in 1989) provide further guidance on creating an effective safety plan. In addition, OSHA makes examples of different safety plans, applicable to different types of workplaces, available to the public.
Tip 3: Be Prepared for an Inspection
OSHA inspections are conducted by a compliance safety and health officer (CSHO) and are usually not conducted with any advance warning to the employer. Prior to showing up, the CSHO will have already researched the inspection history of the particular site and reviewed the operations and processes in use and the standards most likely to apply. In short, the CSHO will be prepared — to the extent you can, you need to be prepared too. One way to do this is to designate one employee (most likely, a safety employee) to be the company representative for the inspection. This person will accompany the inspector wherever he or she goes. As a result, there will be one consistent “voice” on behalf of the employer.
Having a good representative is critical, especially considering that anything the representative tells the inspector may later be used as evidence against the company. It is also important to know and exercise your right to duplicate any tests conducted by the inspector during the inspection and/or to take your own photographs and/or measurements. Also, it is important to take down detailed notes during the inspection, because they may prove critical during negotiation as well as in developing safety programs to avoid potential violations in the future.
Finally, OSHA requires that all employers maintain certain types of records. Make sure these records are in fact maintained and easily accessible.
Tip 4: Know Your Rights and the Process
Having a basic understanding of the OSHA process is critical since many of your rights may be lost if you fail to comply with certain rigid time deadlines. For example, if you decide to contest a citation, you must submit a Notice of Intent to Contest (often called a “Notice to Contest”) in writing to the OSHA area office within 15 working days of your receipt of the citation. The Notice to Contest must clearly state what is being contested (e.g., the citation, the penalty, and/or the abatement date) and must be made in good faith. If you do not comply with this time deadline, your right to contest the citation will be lost — the citation will be final.
Another important right upon receipt of a citation is to request an informal conference with the OSHA area director. An informal conference must be held within 15 working days of your receipt of the citation. (This is the same deadline as for contesting a citation.) It is important to keep in mind that requesting and/or appearing at an informal conference will not extend the time you have to contest the citation.
Informal conferences are popular and may be extremely useful because they present an opportunity at an early stage of the process to negotiate a penalty reduction, extension of abatement dates, deletion of violations, and/or reclassification of violations. Reclassification of a violation to a less severe violation can impact not only on the amount you currently pay in penalties, but also on any future penalties. For example, if you later receive another citation for the same initial violation, you will not receive a “repeat” violation (which could cause higher penalties). While it is still technically possible that reclassification of violations may still occur without an informal conference, the informal conference is the most efficient, and often preferred, way to negotiate this.
Tip 5: Evaluate Potential Defenses
It is also important to have at least a basic understanding of certain procedural and substantive defenses to citations. Indeed, some popular defenses include: (1) the wrong employer was cited; (2) unpreventable employee misconduct; (3) vagueness of the standard; (4) no hazard exists; (5) duplicative citations; (6) greater hazard posed by compliance; (7) impossibility/infeasibility of compliance; (8) allocation of responsibility by contract; (9) violation not within the scope of employment; and (10) new citation not “substantially similar” to prior citation (if cited for a “repeat” citation).
The unpreventable employee misconduct defense warrants special discussion. Indeed, if you can establish that an employee’s violative conduct was unknown to the employer and in violation of an adequate work rule which was effectively communicated and uniformly enforced, then no citation should be issued. This underscores the importance of not only establishing a comprehensive and effective safety plan, but also communicating the plan to employees and inspecting the site and enforcing the plan.
Tip 6: Take Advantage of OSHA Programs
OSHA offers a number of different programs that may be helpful. For example, participation in a Voluntary Protection Program (VPP) may lead to a decline in injury and illness rates, which may lead to lower Workers’ Compensation premiums and insurance rates. In addition, OSHA’s On-site Consultation Program offers free and confidential advice to small and medium-sized businesses. These services are separate from enforcement and do not result in penalties or citations. Indeed, consultants from state agencies or universities work with employers to identify workplace hazards, provide advice on compliance with OSHA standards, and assist in establishing injury and illness prevention programs. No citations are issued and your identity is confidential. However, you will be obligated to correct any serious job safety and health hazards that may exist. Other programs also exist and may be investigated.
As the above should make clear, when it comes to OSHA, it is of critical importance to provide for more than “an ounce of prevention.” By seeking to incorporate the above strategies, the dual purpose of promoting safety and minimizing exposure will be served, all to your benefit and the benefit of your employees.
Michael Rubin is special counsel in the OSHA and Worksite Safety Practice Group at the law firm Goldberg Segalla. He has defended clients in a wide variety of general liability matters, including construction site accidents and environmental claims. A speaker on OSHA compliance, he has completed the Department of Labor’s OSHA-10 construction training. He may be reached at firstname.lastname@example.org.
Rule "probably not entirely technologically feasible" for all employers
January 31, 2014
The Honorable David Michaels Assistant Secretary Occupational Safety and Health Administration U. S. Department of Labor 200 Constitution Avenue, NW Washington, DC 20210
By http://www.regulations.govRE: ASSE Comment on the OSHA Proposed Rule Occupational Exposure to Crystalline Silica (Docket No. OSHA-2010-0034)
Dear Assistant Secretary Michaels:
The American Society of Safety Engineers (ASSE) is pleased to submit the following comments concerning the Occupational Safety and Health Administration’s (OSHA) Proposed Rule Occupational Exposure to Crystalline Silica published in the September 12, 2013, Federal Register (78 Fed. Reg. 56273). This is an issue that will significantly impact the ability of workers to return home from work each day healthy, of employers to be able to reasonably carry out their business without unnecessary burdens, and of safety, health and environmental (SH&E) professionals to be able effectively to assist both in achieving effective protections from crystalline silica risks.
As you know, ASSE is the oldest and largest society of safety professionals in the world. Founded in 1911, ASSE represents over 35,000 dedicated safety, health, and environmental (SHE) professionals. Our members are experts in managing workplace safety and health issues in every industry, in every state and across the globe. They belong to one or more of ASSE's 20 practice specialties, many of which will be affected by this rulemaking. ASSE is also the Secretariat for various voluntary consensus standards related to best practices in occupational safety and health, including the Z10 standard for Safety and Health Management Systems.
Silica dangers known since the time of the ancient Greeks
ASSE commends OSHA for addressing this issue through rulemaking in an effort to further reduce the incidences of occupational illnesses such as silicosis and cancer in general industry, maritime and construction work. While some may debate the science underlying the findings set forth in the proposed rule, overexposure to crystalline silica has been linked to occupational illness since the time of the ancient Greeks, and reduction of the current permissible exposure limit (PEL) to that recommended for years by the National Institute for Occupational Safety and Health (NIOSH) is long overdue. In 2011, ASSE formally requested to the Office of Management and Budget's Office of Information and Regulatory Affairs (OIRA) that it release the pending silica proposal for public comment so that all stakeholders could participate in the discussion about appropriate rulemaking, including safety and health professionals who are already working with employers to protect workers from silica risks in cost-effective, practicable ways.
In short, requiring implementation of feasible engineering and administrative controls, improved medical surveillance and proactive exposure monitoring in situations where exposures above the PEL can be anticipated is a reasonable approach and is generally consistent with the recommended best practices established in the ASTM E1132 Standard Practice for Health Requirements Relating to Occupational Exposure to Respirable Crystalline Silica, (general industry) and the ASTM E2625 Standard Practice for Controlling Occupational Exposure to Respirable Crystalline Silica for Construction and Demolition Activities.
ASSE supports the goals
ASSE supports the goals for this rulemaking and will remain involved throughout the hearing and post-hearing period when further technical comments may be offered. In this, our initial submission, ASSE provides specific comments that we urge OSHA to take into consideration in drafting a final rule. The agency has posed nearly ninety questions for commenters to consider, and many of these are beyond the scope of ASSE’s ability to respond because they seek site-specific information and data that only can be provided by individual employers or employee representatives.
Similarly, although OSHA has provided a great deal of scientific and epidemiological information on the potential health effects of overexposure to crystalline silica, we will not be commenting at this time on the validity of these studies. While commenters on both sides will no doubt argue about which studies should be given more or less weight, it is indisputable that overexposure to respirable crystalline silica presents risks of silicosis. In 1997, the International Agency for Research on Cancer (IARC) classified silica as a Group One human carcinogen. Despite ongoing emphasis inspection programs conducted by OSHA since that time, and education of workers through the hazard Communication Standard (29 CFR 1910.1200), employees are still being diagnosed with silica-related occupational illnesses and overexposures to the current 100 µg/m3 limit continue to occur with disturbing frequency. More is needed to protect the health of our nation's workers.
Two million workers covered
The proposed rule would lower the PEL to 50 micrograms per cubic meter of air (µg/m3), which is 50% of the current PEL and consistent with the NIOSH REL. OSHA has also proposed an action level of 25 µg/m3, which is consistent with the Threshold Limit Value (TLV) set by the American Conference of Governmental Industrial Hygienists (ACGIH). The proposed rule covers the three forms of crystalline silica – quartz, cristobalite, and tridymite – and applies to general industry, maritime, and construction. According to the OSHA proposed rule, the final rule would affect over 2 million workers, and the agency’s risk assessment links overexposure to respirable crystalline silica to health conditions that include lung cancer, silicosis, chronic obstructive pulmonary disease, and autoimmune disorders.
What the rule would require
The proposed rule not only aims to enforce significantly lowered action and permissible exposure levels (PEL) but also places on operators increased requirements for administrative and engineering controls as well as exposure monitoring, medical surveillance, and implementation of “best practices.” A key issue surrounds currently utilized sampling methods, which may not have precision down to the 25 µg/m3 action level – the level that triggers many of the rule’s requirements – but OSHA indicated that the standard is intended to be “technology forcing.” We support OSHA's position of providing some lead time for laboratories to obtain necessary accreditation. Doing so will help ensure the accuracy of the sampling and analysis of silica samples that will be used to benchmark compliance and trigger some of the rule’s requirements. A failure in this area could leave the rule susceptible to legal challenge and could result in further delays in worker protections.
Under the proposed standard for general industry, employers must perform initial monitoring of employees “who are, or may reasonably be expected to be” exposed to crystalline silica at or above the action level of 25 µg/m3. For those general industry operators already testing for crystalline silica exposure, the previous testing may suffice for the proposed initial monitoring proposed above, and we agree with this approach. The requirement for initial monitoring is satisfied if the employer has monitored employee exposures in the twelve months before the standard’s effective date or has “objective data” that demonstrates that respirable silica “is not capable of being released at or above the action level under any expected conditions of processing, use or handling.” “Objective data” is defined as “monitoring data from industry-wide surveys or calculations based on the composition or chemical or physical properties of a substance.”
However, where the initial monitoring shows that exposure is above the action level but below the PEL, the monitoring must be repeated every six months. If the initial monitoring shows exposures above the PEL, repeat monitoring must be done every three months until two consecutive tests show exposure below the action level. Additional assessments are required “whenever a change in the production, process, control equipment, personnel, or work practices may reasonably be expected to result in new or additional exposures at or above the action level.” This is a reasonable approach, consistent with sound industrial hygiene practices.
Alternative approach for construction industry
The proposal for construction provides for a similar assessment of employee exposure but provides an alternative approach – “task based control strategies” – for certain operations that ASSE believes should similarly be allowed in general industry. For these operations, the employer, instead of assessing employee exposure, may implement specified equipment safeguards and work practices. If the equipment and work practices are implemented, the employer is not required to assess employee exposure. ASSE urges OSHA to consider taking a similar approach, perhaps in a non-mandatory appendix, for common job classifications in general industry and maritime that are known to have historically high silica exposures so that smaller employers can be guided as to what types of controls will be most efficacious.
In the proposal, OSHA proposes a hierarchy of mandating engineering and workplace controls over simply providing personal protective equipment (PPE) such as respirators, and it specifically bars job rotation as a method of attaining compliance. For tasks that involve some levels of silica exposure but are performed in an infrequent basis, job rotation may be warranted as an alternative to other, more burdensome, engineering or administrative controls. We urge OSHA to reconsider this issue, especially given the fact that every person on earth is exposed to some degree to crystalline silica as a main constituent of the planet's crust and due to its presence in so many construction materials. While ASSE appreciates the goal of limiting the number of employees exposed to toxic chemicals generally, crystalline silica provides a unique situation when compared to chemicals such as benzene and toluene.
The proposed rule states that “the employer shall use engineering and work practice controls to reduce and maintain employee exposure … to or below the PEL unless the employer can demonstrate that such controls are not feasible.” The employer is responsible for implementing the controls to reduce exposure to the “lowest feasible level” and supplementing with use of respiratory protection. In addition, both the general industry and construction standards require that, whenever an employee’s exposure “is or can reasonably expected to be in excess of the PEL,” the employer must establish either a “regulated area” or have a “written access control plan” to limit persons who may enter, and require certain protections (e.g., respirators, protective clothing or removal of dust from contaminated clothing) for any persons who do enter the restricted area. While ASSE generally supports this concept, there will be practical issues with implementation on small short-term construction worksites, and ASSE urges OSHA to take into consideration the comments of construction employers in determining how best to address this issue.
Medical monitoring requirements
OSHA has included in the proposed rule medical monitoring requirements for any worker exposed to heightened levels of crystalline silica. The proposed rule states that medical surveillance must be provided for each employee who will be exposed above the PEL for 30 days or more per year at no cost to the employee. The surveillance program includes an initial baseline exam within thirty days of initial assignment and repeat exams every three years or more frequently if recommended by a health care provider. ASSE supports this requirement but urges the agency to address in a final rule how this requirement addresses contingent workers who may move from one job to another, never staying for a full 30 days, but consistently having silica exposure.
The proposed rule stipulates requirements and provisions regarding laboratory testing and record keeping of exposure data. The proposed rule requires operators to retain accredited laboratories to analyze samples. Additionally, operators will also be required to maintain complete records and materials such as samples, reports, and medical surveillance records related to respirable crystalline silica exposure. This is appropriate, and exposure and surveillance data should be readily available to workers and, where applicable, to employee representatives. Records should be permitted to be stored electronically to ease paperwork burdens.
The rule’s preamble makes quite frequent reference to the American Society for Testing and Materials (ASTM) standards for general industry (E1132) and construction (E2625), which dictate best practices but do not include an occupational exposure level. It may be beneficial to incorporate by reference one or both of these consensus standards, consistent with the OMB Circular A119 and the Technology Transfer Act of 1995, or at least include relevant portions in OSHA guidance information.
To the specific questions OSHA poses in the Proposed Rule, ASSE provides the following comments:
To the specific questions OSHA poses in the Proposed Rule, ASSE provides the following comments:
Has OSHA adequately identified and documented all critical health impairments associated with occupational exposure to respirable crystalline silica?
OSHA has done a thorough job of compiling and reviewing key studies as part of its risk assessment, and identifying potential health effects related to occupational exposure to respirable crystalline silica, but it is clear that more research will be needed to scrutinize the correlation in some areas (e.g., the link between silica and autoimmune disorders). Because NIOSH is designated in the Occupational Safety and Health Act of 1970 as the agency to conduct research on occupational health to guide OSHA’s regulatory decisions, this would be the logical governmental entity to conduct further studies in this area. Adequate funding should be made available to NIOSH for this purpose.
17. Is the proposed rule technologically feasible?
As written, the proposed rule is probably not entirely technologically feasible for all employers. OSHA itself admits that even following the steps in Table 1 may not result in construction exposures below the rule's limits. Given the number of employers who currently do not meet the 100 ug/m3 PEL, many will likely have trouble complying with the new PEL, much less the action level, from an economic standpoint as well. However, given that the proposed rule is viewed as a technology forcing standard, OSHA should continue to monitor new technological advances to determine ultimately this issue. Technological and economic infeasibility is likely to be the subject of many affirmative defenses to silica citations in the future.
23. Are there particular outreach materials that would make compliance easier?
Including non-mandatory appendices in the final rule will be useful in providing guidance for employers on subjects such as exposure monitoring and medical surveillance, but more will be needed. OSHA has done a commendable job so far in its outreach efforts for the GHS/HazCom final rule, and this same approach can be used for silica. Web-based materials in a number of languages will be needed, but written collateral materials (also multi-lingual) also will be needed to reach and assist the smallest employers who may not have ready access to electronic technology, particularly in the construction sector. Outreach alliance partners should be actively sought by OSHA in advance of promulgating the final rule.
26. Do you believe that improved outreach and enforcement of the existing PELs would be sufficient to reduce significant risks of material health impairment in workers exposed to respirable crystalline silica?
ASSE is aware that there is a line of argument that the incidence of disease is due to employers’ failure to comply with current PELs and/or OSHA’s failure to enforce these limits. The issue is further complicated by the long latency period of chronic silicosis and lung cancer, which suggests that current cases predate many of the existing and common control methodologies now in use to lower exposures. ASSE believes that the body of scientific literature lends support for reducing the PEL to the proposed limit. However, during the years to come as this rule is finalized, potentially adjudicated and phased in, OSHA should continue educational outreach and reasonably considered enforcement through ongoing silica-based emphasis programs for affected industry sectors.
31. Should OSHA modify the scope to limit the construction standard to specific construction operations, as opposed to covering all occupational exposures in construction work?
ASSE supports the proposal to cover all silica exposures in construction work rather than limiting compliance to specific operations.
35. Should there be specific requirements for training of a competent person relating to establishment of an access control plan?
ASSE urges the development of specific competent person training for persons who design and implement an access control plan that exempts prior relevant training (e.g, an OSHA 30-hour course) or persons holding nationally accredited occupational safety and health certifications such as the Certified Safety Professional (CSP) or Certified Industrial Hygienist (CIH).
38. Is the proposed PEL appropriate, given that it will reduce but not eliminate significant risk of material health impairment?
Yes, as this is the lowest limit currently feasible for enforcement purposes.
40. Is the action level of 25 ug/m3 appropriate to be included in the final rule?
43. Has OSHA defined "objective data" sufficiently for an employer to know which data can be used?
The qualitative data that employers should be able to use to meet the "objective data" criterion, should include: information from manufacturer/distributor Safety Data Sheets (SDSs) for the silica-containing product or material; prior sampling information for the affected job classifications; likelihood of dust generation in light of the processes used and environmental factors (wind strength and direction, etc.); proximity of airborne dust to the workers; and the nature of the industrial process, and whether it is wet or dry. In some cases, an employer should be permitted to use historical aggregated sampling data throughout the company for pertinent job classifications where there is a commonality in terms of processes and equipment. Where such objective data indicate that a risk of overexposure is present, sampling of tasks or representative worker exposures should be conducted.
44. Should periodic exposure assessment be done on a fixed schedule or should it be performance-based?
Periodic exposure assessment should be performance-based to avoid imposing added expenses for what might be unnecessary testing on a fixed schedule.
50. How would the regulated areas and access control provisions apply at multi-employer worksites?
The host employer or general contractor should have primary responsibility for ensuring compliance with these provisions. If a subcontractor is solely responsible for generating silica exposures that trigger these requirements, that employer must notify the host employer or general contractor in advance of commencing work of the need for regulated areas or access control so that both employers can work cooperatively to ensure compliance and also to notify any other employers on site whose employees may be affected by these requirements.
51. Is protective clothing needed for silica exposures?
No special clothing should be required as crystalline silica does not present a chemical hazard when applied to the skin. Only respiration or inhalation of crystalline silica is a significant health concern. However, employers need to implement programs to assure employees whose clothing is contaminated with crystalline silica do not create exposure issues off the job.
53. Should OSHA require employers to develop and implement written exposure control plans, and what should be in those plans?
Employers with suspected or documented exposures above the PEL should be required to have written exposure control plans, preferably developed by a Certified Safety Professional (CSP) or Certified Industrial Hygienist (CIH). The plan should implement engineering and administrative controls to reduce silica exposures to below the PEL. A root cause analysis should be part of the plan to identify the sources/causes of overexposures. Follow up sampling to ensure the efficacy of further controls should be required.
54. Is the approach taken in Table 1 for construction appropriate and should changes be made?
This is an effective approach and should also be considered for the general industry/maritime standard for commonly performed tasks involving high levels of silica exposure. See also, Tables 1 through 5 in ASTM E2625-09 and Tables 2-6 of ASTM E1132-13 as examples.
56. Should construction employers who comply with table 1 be viewed as in compliance even if they do not ensure compliance with the PEL?
Yes, because following the protective measures in this table can be viewed as akin to implementing all technologically feasible controls and employers who do this should not be cited if exposures remain above the PEL, as OSHA predicts may be the case for tasks such as tuck pointing. In such cases, employee rotation should be permitted to further reduce exposures once the other controls and PPE are utilized.
66. Should the use of compressed air and dry sweeping for cleaning of surfaces and clothing be prohibited?
Generally yes, except where dry sweeping is the only option available. OSHA should also be aware of mobile air shower technology developed for the mining and oil/gas industry in conjunction with NIOSH that is designed to permit safely the use of compressed air for cleaning of employee clothing. Such emergent technology should be deemed compliant in the future under this rule rather than requiring a variance.
68. Should employee rotation be prohibited as a means of achieving compliance with the PEL?
No. See our comments supra.
72. Is the requirement for latent TB testing appropriate?
The requirement for latent TB testing is appropriate, given OSHA's role as a public health agency and considering the potential benefits from early diagnosis and treatment of TB and its impact on the spread of this contagious disease. This requirement is also appropriate given the studies that suggest an increased risk of adverse health effects from silica exposure to workers with TB.
73. Is the requirement for pulmonary function testing initially and at three-year intervals appropriate?
Yes, this requirement is consistent with most credible occupational health programs related to respirable crystalline silica exposure.
74. Is the requirement for chest x-rays initially and at three-year intervals appropriate?
Yes. However, OSHA should also consider what will constitute a finding that is recordable or reportable to the agency as constituting a diagnosis of silicosis. The Mine Safety and Health Administration (MSHA) requires reporting of a 1/0 reading by a B-reader to be a presumptive diagnosis, although the employer can get a second opinion at its own expense.
77. Is exposure for 30 days from initial assignment, at or above the PEL, the appropriate number of days to trigger medical surveillance?
For stable workforces, this would be appropriate. However, ASSE is concerned that many contingent or temporary workers as well as workers misclassified as contractors may be deprived of full protection under such a system.
80. Should there be medical removal provisions in the final rule?
No, we agree with OSHA's position that this would provide little benefit.
81/82. Should additional training beyond HazCom training be required for those working with respirable crystalline silica? Should warning labels be changed?
No, full compliance with the newly revised GHS/HazCom rule should be adequate.
84. Are the record keeping requirements for air monitoring, objective data, and medical surveillance appropriate?
ASSE supports consistency with the ASTM silica standards, which provide for retaining these records for at least 40 years or for the duration of employment plus 20 years, whichever is longer, due to the long latency periods of some silica-related illnesses.
Finally, ASSE appreciates the opportunity to comment on this proposed rule. We look forward to continued participation in the process that we hope, in the end, can result in a standard that is consistent with the success our member safety and health professionals have had in helping employers protect workers from respirable silica risks so that all employees can enjoy the same protections.
Kathy A. Seabrook CSP, CMIOSH, EurOSHM President
Falls are a persistent hazard found in all occupational settings. A fall can occur during the simple acts of walking or climbing a ladder to change a light fixture or as a result of a complex series of events affecting an ironworker 80 feet above the ground. According to the 2009 data from the Bureau of Labor Statistics, 605 workers were killed and an estimated 212,760 workers were seriously injured by falls to the same or lower level.
The highest frequency of fall-related fatalities was experienced by the construction industry, while the highest counts of nonfatal fall injuries continue to be associated with the health services and the wholesale and retail industries. Healthcare support, building cleaning and maintenance, transportation and material moving, and construction and extraction occupations are particularly at risk of fall injuries.
Circumstances associated with fall incidents in the work environment frequently involve slippery, cluttered, or unstable walking/working surfaces; unprotected edges; floor holes and wall openings; unsafely positioned ladders; and misused fall protection. Federal regulations and industry consensus standards provide specific measures and performance-based recommendations for fall prevention and protection. However, persistent unsafe practices and low safety culture across many industries define steady fall injury rates year after year.
Fall injuries constitute a considerable financial burden: workers’ compensation and medical costs associated with occupational fall incidents have been estimated at approximately $70 billion annually in the United Sates [NSC 2002]. Many countries are facing the same challenges as the United States on fall injury in the workplace. The international public health community has a strong interest in developing strategies to reduce the toll of fall injuries.
Successful reduction of fall injury and fatality rates requires continued concerted efforts of regulators and industry leaders, professional associations and labor unions, employers and employees, safety professionals and researchers in enhancing the work environment, implementing new effective fall prevention and protection technologies, and improving the work safety culture through continuous education of the workforce. NIOSH, as the leader in occupational safety research, plays a key role in these complex fall-injury prevention efforts.
Reference: NSC . Report on injuries in America 2002. Itasca, IL: National Safety Council.
Fall-Related Research and Development Activities at NIOSH
Planning and Guidance of Fall-Related Research at NIOSH
The NIOSH fall-injury prevention research strategic planning and goal setting is structured throughout industry sector and cross-sector programs, and takes into consideration the magnitude or emergence of the problem as evidenced by data, immediacy of need expressed by critical stakeholders, current resources and expertise in the goal area, current research, strength of partnerships in current research, and status and momentum on the course of research-to-practice. The strategic planning process has been recently enhanced with input from the National Academy of Sciences program review.
Program contact: Hongwei Hsiao, Ph.D. Protective Technology Branch (304) 285-5910; HHsiao@cdc.gov
OSHA is working on three rules that should be considered when EHS professionals are planning for 2014
SHA is working on three rules that should be considered when EHS professionals are planning for 2014. Twice a year, OSHA publishes a regulatory agenda as a way to keep the regulated community informed regarding upcoming activity. The latest edition was issued in
Combustible Dust (RIN: 1218-AC41)
In a study conducted in 2006, the Chemical Safety Board documented hundreds of fatalities and serious injuries resulting from combustible dust explosions. As a result, OSHA began working on this rule in October 2009 with the release of an advanced notice of proposed rulemaking.
Any workplace where combustible dust is generated and allowed to accumulate over time is at increased risk of a serious fire or explosion. Some of the workplaces identified by OSHA that will be affected by this rule include those that process wood, paper and food products (especially sugar and grains); those that process plastics; pharmaceutical manufacturers; and any business that stores and processes coal.
The Small Business Regulatory Enforcement Fairness Act review was on the docket in November, one of the many steps to the rulemaking process that provide a detailed assessment of the anticipated economic impacts to small business resulting from this rule. While OSHA has not completed its economic evaluation for this rule, some stakeholders have expressed concern that some costs of the expected requirements (e.g., updating power-plant equipment to meet NFPA 654 specifications) could run in the millions of dollars per power plant. The release of a final rule for combustible dust could take up to five years, so this is the optimal time in the rulemaking process to provide input.
Occupational Exposure to Silica (RIN: 1218-AB70)
This proposed rule, published in September 2013, is in response to an increasing body of knowledge regarding the health effects associated with exposure to crystalline silica. While OSHA has regulated crystalline silica safety since the agency’s inception in 1970, the lack of progress in making improvements to worker protection through means outside of the rulemaking process has been slow. In terms of benefits from the proposed rule, OSHA estimates that employers will save $2.8 billion in costs associated with a decrease in the number of employee fatalities and serious illnesses.
Of all the industries likely to be impacted by this new rule, hydraulic fracking gets the most press attention. Large quantities of sand containing crystalline silica are used as a component of the hydraulic fracking fluid that is used to stimulate oil and gas production in shale formations. Crystalline silica becomes airborne during the delivery and transfer of silica sand, thus exposing workers to crystalline silica through inhalation. Other industries that need to pay attention to this rule include foundries, dental labs, manufacturers of concrete products, roadway construction, masonry and mining.
OSHA estimates the average annualized cost of compliance once the revised rule is finalized will be $658 million, with the lion’s share of the costs ($511 million) borne by the construction industry. While OSHA’s analysis has concluded that there will be no significant adverse economic impact to small business, it is conceded that small businesses are at a disadvantage as they generally pay higher unit costs on items such as training and exposure monitoring services relative to their larger counterparts. While one-time capital investments in engineering controls are expected to cost the most, EHS managers should consider seeking engineering controls with the efficacy to reduce recurring costs such as respirators and exposure monitoring. With the publishing of the notice of proposed rulemaking in September 2013, OSHA typically estimates up to two years to collect and review feedback from the regulated community and up to three years to publish a final rule. Once the final rule is made effective, expect a two-year roll-out schedule.
Confined Spaces in Construction (RIN 1218-AB47)
OSHA was scheduled to publish a final rule for confined spaces in construction this month. Although OSHA has enforced a confined spaces standard applicable to general industry since 1993, none exists for the construction industry. Recognizing the material differences in managing the confined space hazard in a construction setting and further recognizing the need for a regulatory standard, OSHA published the proposed rule for confined spaces in construction in November 2007. As proposed, this rule will affect any construction company whose worksite has confined spaces – including residential and industrial builders, highway and street construction companies, water and sewer construction companies and utility and communications construction companies.
The confined spaces in construction standard places great emphasis on communication between contractor companies because most construction sites have multiple construction companies working simultaneously. The greatest burden for communication will rest with the controlling or host contractor to ensure that all contractors are aware of a worksite’s confined space hazards. OSHA estimates that the new rule will cost up to $77 million annually to implement all elements. It is worth noting that these figures are in 2002 dollars, which provides some context for how long OSHA has been working on this rule.
With the final rule due this month, EHS managers should begin accelerating their efforts to provide training to their affected workforce. There are many elements in the confined spaces in construction standard that fundamentally are different than the confined spaces for general industry, so it’s not safe to assume that a workforce trained in the general industry standard is prepared for this new standard for the construction industry. For contractors who typically are in the role of controlling contractor, EHS managers should think strategically regarding the readiness of their subcontractor workforce.
OSHA publishes its regulatory agenda twice a year, with the next installment expected around press time for this magazine. The regulated community can expect to see the timing of the next steps along the path toward finalization of the three rules discussed above.
While our days normally are full with keeping up with all of the regulations that already are in effect, taking the time to track new rules in the making can help ensure that our organizations are ready once these new rules become finalized. The OSHA website provides plenty of tools for tracking progress of and providing input to the rulemaking process.
Ron Severson, CSP, MSM, is a senior consultant with TRC’s Environmental Management & Sustainability Practice. He has over 20 years of experience as an EHS professional working in both consulting and the pharmaceutical industry. As a consultant, Severson’s background includes extensive experience with EHS program development, assessments and audits, construction safety, industrial hygiene and indoor air quality services and human health risk assessment. Amy Boas, CIH, is a senior consultant with TRC’s Environmental Management & Sustainability Practice. She has been an EHS professional in both consulting and private industry for 18 years. As a consultant, Boss has focused on management consulting, including EHS culture development, identifying and implementing corporate EHS-related objectives and sustainability, in addition to industrial hygiene assessments, EHS audits and EHS program development.
The National Institute for Occupational Safety and Health (NIOSH) has released "Update of NIOSH Carcinogen Classification and Target Risk Level Policy for Chemical Hazards in the Workplace" which will align its carcinogen policy with the latest cancer research.
The draft of the document can be viewed here and is available for comment until February 13, 2014.
NIOSH drafted the document by consulting with the public and stakeholders. The revised carcinogen policy seeks to help improve the way carcinogens are classified. It also aims to adopt the classification systems of federal and international organizations such as the National Toxicology Program and the International Agency for Research on Cancer.
For more information, read the press release.
The National Highway Traffic Safety Administration (NHTSA) released the final data for traffic deaths in 2012. The total was 33,561, which is 1,082 more than in 2011.
This marks the first time since 2005 that highway fatalities rose from a previous year. The 2011 figures were the lowest since 1949. The NHTSA says that despite the 2012 rise, the death rates are still at 'historic lows.'
Other 2012 data released by the NHTSA:
The number of pedestrians who died in 2012 increased from 2011, as did those who died from crashes involving motorcycles.
Drunk driving-related fatalities rose, killing over 10,000 in 2012.
Distracted-driving deaths decreased in 2012 from 2011.
For more information, read the press release.
More American workers are testing positive for certain drugs despite the overall decrease in drug use over the last 25 years, according to Quest Diagnostics.
Quest Diagnostics assessed over 125 million urine samples from truck drivers, train operators, airline and nuclear power plant workers, among others from 1988 to 2012.
According to the study, the number of overall positive drug tests in the U.S. general workplace dropped from 10.3 percent in 1992 to 4.1 percent in 2012. However, it revealed that positive results for several drugs have risen, including opiates like hydrocodone, hydromorphone, oxycodone and oxymorphone and amphetamines like Adderall®.
For more information, read the press release.
The American Transportation Research Institute (ATRI) reports that over two-thirds of commercial drivers have been feeling more fatigued since the Federal Motor Carrier Safety Administration's (FMCSA) new Hours-of-Service (HOS) rule has been in place.
According to the survey, nearly 83 percent feel that the new standards have contributed to a lower quality of life. Drivers have also reported lower wages and a decline in productivity.
For more information, read the press release.
In related research, according to a new study by the AAA Foundation for Traffic Safety, more than 25 percent of drivers surveyed hit the road despite the fact that they were tired and could barely keep their eyes open behind the wheel. Peter Kissinger, President and CEO of the organization, shares that 'many drivers are underestimating the problem of driving while extremely tired.'
To learn more about the study, read the press release.
Members of the public who wish to participate in public hearings on OSHA's proposed silica rule must submit a notice of intention to appear by Dec. 12. Hearings are scheduled to begin on March 18, 2014 at the Department of Labor's Frances Perkins Building in Washington, D.C.
"We strongly encourage the public to assist in the process of developing a final rule by participating in public hearings," said Assistant Secretary of Labor for Occupational Safety and Health Dr. David Michaels. "We especially hope to hear from employers, workers and public health professionals who have experience in successfully protecting workers from silica-related diseases."
Additional information on the proposed rule, including a fact sheet on how the public can participate, is available at www.osha.gov/silica. Members of the public may comment on the proposal by visiting www.regulations.gov.
Whistleblowers covered by one of 22 statutes administered by OSHA will now be able to file complaints online. The online form will provide workers who have been retaliated against an additional way to reach out for OSHA assistance.
"The ability of workers to speak out and exercise their rights without fear of retaliation provides the backbone for some of American workers' most essential protections," said Assistant Secretary of Labor for Occupational Safety and Health Dr. David Michaels. "Whistleblower laws protect not only workers, but also the public at large and now workers will have an additional avenue available to file a complaint with OSHA."
Currently, workers can make complaints to OSHA by filing a written complaint or by calling the agency's 1-800-321-OSHA (6742) number or an OSHA regional or area office. Workers will now be able to electronically submit a whistleblower complaint to OSHA by visiting www.osha.gov/whistleblower/WBComplaint.html. Read the press release and visit www.whistleblowers.gov for additional details.