OSHA Delays Effective Date for Enforcing Employees' Rights to Report Workplace Injuries, Illnesses

July 18, 2016

OSHA is delaying enforcement of the anti-retaliation provisions in its new injury and illness tracking rule to conduct additional outreach and provide educational materials and guidance for employers. Originally scheduled to begin August 10, 2016, enforcement will now begin November 1, 2016.

Under the rule, employers are required to inform workers of their right to report work-related injuries and illnesses without fear of retaliation; implement procedures for reporting injuries and illnesses that are reasonable and do not deter workers from reporting; and incorporate the existing statutory prohibition on retaliating against workers for reporting injuries and illnesses.

California Announces Major Regulatory Proposal to Improve Safety at Oil Refineries

The Department of Industrial Relations (DIR), the Governor’s Office of Emergency Services (Cal OES) and the California Environmental Protection Agency (CalEPA) recently announced a landmark set of regulations to strengthen workplace and environmental safety at oil refineries across the state.

The regulatory proposals are intended to make California refineries safer both for workers and surrounding communities. The two regulations implement key recommendations of the Governor’s Interagency Working Group on Refinery Safety, and are the result of a multi-year effort, including extensive consultation with workers, industry, NGOs, and communities.

“The proposed regulations will put into place new strategies to prevent major incidents at refineries, and to protect refinery workers and surrounding communities from exposure to health and safety risks,” said David M. Lanier, Secretary of the Labor and Workforce Development Agency.

The proposal includes two complementary regulations—one overhauling Cal/OSHA worker safety regulations as they apply to refineries and another strengthening the California Accidental Release Prevention program (CalARP) regulations designed to prevent the accidental release of hazardous substances that could harm public health and the environment. DIR, Cal OES, and CalEPA have collaborated to ensure that the two regulations are aligned.

“These regulations will make refineries safer neighbors and employers. Refinery workers, community and environmental organizations, and industry leaders worked with us to develop requirements that are practical and effective,” said Matthew Rodriquez, California Secretary for Environmental Protection.

The proposed regulations incorporate the most advanced principles of safer engineering and management, as well as attention to the human and organizational elements of safety. Key features of the proposed regulations include:

  • Increased employer accountability for the mechanical integrity of refinery equipment
  • Requirements to adopt inherently safer designs and systems, to the greatest extent feasible
  • Increased employee involvement in all aspects of the safety and prevention program
  • Periodic workplace safety culture assessments to evaluate whether management is appropriately emphasizing safety over production pressures
  • Authority for refinery personnel to shut down a unit if needed in the event of an unsafe condition or emergency and provisions for anonymous reporting of safety hazards
  • Requirements for investigations to determine root causes of any incidents that do occur and develop interim and permanent corrective measures in response
  • Annual public reporting of refinery safety metrics

Major incidents at oil and gas refineries pose a significant risk to refinery workers and nearby communities while costing Californians an average of $800 million a year in disruption to fuel supplies.

“The proposed amendments to the California Process Safety Management program and Accidental Release Prevention program are significant improvements that will strengthen protections for workers, communities and the environment, based on lessons learned and best practices,” said Vanessa Allen Sutherland, Chairperson of the U.S. Chemical Safety Board. “We look forward to seeing the final regulations implemented, and we hope that they prove to be a model for refinery worker protection and public safety for the rest of the country.”

Cal OES and DIR’s Occupational Standards Board will provide a minimum of 45 days to solicit comment on the proposed regulations. A public hearing on the Process Safety Management regulation will be held in Sacramento on September 15; a public hearing on the CalARP regulation has not yet been scheduled.

Following a serious chemical release and fire in August 2012, Governor Edmund G. Brown Jr. called for an Interagency Working Group to examine ways to improve public and worker safety through enhanced oversight of refineries, and to strengthen emergency preparedness in anticipation of any future incident. The Working Group consisted of participants from 13 agencies and departments, as well as the Governor’s office.

Over an eight-month period, the Working Group met with industry, labor, community, environmental, academic, local emergency response, and other stakeholders. It also worked closely with the Contra Costa County Health Services Hazardous Materials Division, which implements an industrial safety ordinance that served as a model for the proposed refinery safety regulations. In February 2014 the Working Group issued a final report with recommendations to improve safety practices at refineries and develop more reliable and effective emergency response plans. The proposed regulations implement one of four key recommendations of the final report.

California now has an Interagency Refinery Task Force, headed by CalEPA with participation from DIR, its division Cal/OSHA, and 11 other federal, state, and local agencies and departments. The task force works collaboratively to achieve the highest possible level of safety for refinery workers and local communities, and prepare for and effectively respond to emergencies if they occur.

3 Tons of Granite Fall on, Kill Warehouse Worker at Nidi Tec Inc.

OSHA initiated an inspection of Nidi Tec, Inc., in Denver, Colorado, on January 29, 2016, after fractured sections of granite slabs, weighing approximately 6,500 lb combined, fell and killed an employee as he set the slabs on an "A" frame rack with a fork truck. The employee was in the danger zone when the granite slabs fractured and slabs fell on the employee. Investigators found Nidi Tec exposed workers to crushing hazards associated with handling granite at its Denver worksite, and issued citations for two willful, two repeat, and seven serious violations.

OSHA issued the willful violations for exceeding the rated capacity of the fork truck lifting granite slabs and making modifications to the fork truck by using granite pieces as a counter weight. The agency issued two repeat violations were issued for making modifications to the fork lift without the manufacturer's approval, and for using wire rope slings not labeled properly with the lifting capacities.

Inspectors also issued seven serious violations for:

  • Not protecting workers from crushing hazards
  • Storing granite slabs in a way that created a hazard
  • Storing propane fuel used for the fork trucks improperly
  • Failing to train employees properly in the operation of fork trucks
  • Not inspecting fork trucks prior to operation
  • Using defective wire rope slings to lift granite slabs
  • Lacking a hazard communication program

Proposed penalties total $88,900.

"Handling of granite slabs is a well-known hazard in the industry, yet Nidi Tec did not take simple measures which could have avoided a tragedy and an employee's preventable death," said Herb Gibson, OSHA's Area Director in Denver. "Crushing incidents can happen quickly and employers need to evaluate material handling operations."

RWS Manufacturing Inc. Fined $197,820 After Failure to Correct Hazards Leads to Second Fire

Federal workplace safety and health inspectors have cited a Queensbury, New York, manufacturer for exposing employees to uncorrected explosion hazards, as well as recurring fire and fall hazards.

The Albany Area Office of OSHA opened a follow-up inspection on January 13, 2016, after RWS Manufacturing, Inc., failed to verify it corrected violations cited during a previous OSHA inspection. Agency inspectors found that the company failed to address combustible dust hazards involving the dust collection system it had agreed to correct.

Inspectors also identified new and recurring hazards stemming from RWS Manufacturing's failure to:

  • Address combustible dust related fire and explosion hazards for conveyor equipment and an inoperable spark detection/fire suppression system
  • Inspect fire extinguishers annually, and maintain them in fully charged and operable condition
  • Remove accumulations of combustible wood dust and shavings on rafters and other surfaces
  • Remove piles of wood dust and shavings on floors that create fire, slip, trip, and fall hazards

"RWS Manufacturing has disregarded its employees' safety in failing to correct an obvious fire and explosion hazard and in allowing the existence of new and recurring hazards," said Robert Garvey, OSHA's area director in Albany. "Especially disturbing is the fact that, since OSHA's last inspection, a significant fire occurred in the plant's production area in December 2015. For the safety and well-being of its employees RWS Manufacturing must take immediate, comprehensive and effective action to correct these hazards once and for all."

As the result of the follow-up inspection, OSHA has issued RWS Manufacturing citations for failure to abate previously cited violations, two repeat violations, and three serious violations. The company faces proposed penalties totaling $197,820 for these violations.

Workers Exposed to Unguarded Machine, Fall Protection, and Confined Space Hazards in Texas

OSHA in Austin issued citations for two repeat, 23 serious, and four other violations with an $111,000 penalty to Exterran Energy Solutions LP, and four serious violations with a $9,800 penalty to its labor broker, South Texas Specialty Welders, LLC. OSHA initiated the inspection on January 13, 2016, after receiving a complaint alleging unsafe working conditions. The agency issued repeat citations after the employer failed to ensure proper disposal of materials contaminated with residues from the paint booth and for not ensuring proper labeling of containers with hazardous chemicals. OSHA cited the company for the same or similar violation in November 2014, at the same Alleyton worksite.

Among the 23 serious violations, OSHA cited Exterran for failing to:

  • Prevent fall hazards on scaffolding, open-sided floor edges, and steel tanks
  • Provide clear instructions for locking out energy sources prior to working on industrial machines
  • Prevent material handling hazards created by forklifts, cranes
  • Inspect and test lifting devices
  • Properly guard the points of operation and rotating parts on industrial grinders and metal presses

The agency also cited South Texas Specialty Welders, the staffing company, for failing to ensure:

  • The installation of protective railings on loading docks more than 4-feet high
  • Employees received fire extinguisher training when authorized to fight fire
  • A means for quick removal for welders in confined spaces in case of an emergency
  • Employees received effective hazard communication training where hazardous chemicals are used

Exterran Energy Solutions faces fines totaling $111,000 while South Texas Specialty Welders, LLC, faces $9,800 in penalties.

"Exterran knows that safety hazards must be identified and corrected. Unfortunately, the company was complacent, and safety and health practices were not a priority at this location," said R. Casey Perkins, OSHA's area director in Austin. "Fortunately we were able to record these violations and put these employers on notice before any serious injury happened."

IFCO Services Retaliated Against Employee for Reporting Mold Hazard

For more than two months, a worker at a Pennsylvania pallet company repeatedly told her employer about health concerns related to mold exposure at a Biglerville, Pennsylvania, plant. Despite confirming that the mold existed, IFCO Services N.A., Inc., did not remove the fungus and instead fired the woman less than three weeks after she complained again about her health concerns.

On July 6, 2016, the U.S. Department of Labor secured a consent judgment requiring IFCO to pay the employee $105,000 to settle her discrimination claim, as well as a related worker's compensation claim The judgment resolves all issues in the department's lawsuit filed on March 3.

"IFCO showed a total disregard for the well-being of its employees, who physically suffered due to ongoing exposure to mold hazards," said Oscar L. Hampton, regional solicitor in Philadelphia. "This case demonstrates the department's determination to take all necessary legal steps to protect workers who complain regarding hazards in their workplace."

On April 8, 2014, the employee informed the company about suspected mold growing behind filing cabinets in an office at the plant. After more than a week, when the company took no action to correct the unhealthy working condition, the employee contacted OSHA about the mold and a potential electrical hazard. OSHA notified the company about the complaint.

Following the OSHA complaint, IFCO hired an environmental health contractor to sample the mold. The contractor notified IFCO that there was significant active mold growth occurring on the wall behind a filing cabinet and warned that remediation was required as quickly as possible.

From April 8 to June 13, 2014, the employee made repeated complaints to IFCO management about her continued exposure to the mold hazard, and the company's delay in removing all affected employees from the contaminated work area. On July 1, 2014, less than three weeks after requesting again to be removed from the office, she was fired.

The employee filed a complaint with OSHA alleging her termination by IFCO was retaliation for reporting the mold hazard. The agency found that the company violated the anti-discrimination provision of the Occupational Safety and Health Act, or Section 11(c), when it terminated the complainant because she had engaged in protected activities under the Act.

"IFCO's refusal to take immediate action to eliminate what was confirmed to be a serious mold hazard left its employees at risk of developing a chronic health condition," said Richard Mendelson, OSHA regional administrator in Philadelphia. "They also retaliated against the employee who alerted the company and OSHA to the hazard. No worker should have to fear retaliation when they identify a workplace safety and health concern." IFCO failed to reinstate the employee, as well as compensate her for lost wages and other damages suffered as a result of the improper termination.

Filed in the U.S. District Court for the Middle District of Pennsylvania, in addition to the monetary settlement, the judgment requires that IFCO expunge the termination and any related disciplinary action from the complainant's file, as well as post notices at its work site for 60 days stating that it will not discriminate or retaliate against employees involved in activities protected by Section 11 (c) of the Act. The company must also provide OSHA handouts entitled "Filing Whistleblower Complaints under Section 11(c) of the OSHA Act of 1970" to each employee at the worksite, in English and/or Spanish as appropriate. The company is also permanently enjoined from future 11 (c) violations.

Based in Houston, IFCO is a network of more than 50 company-owned and operated pallet distribution centers and a transportation fleet of more than 5,700 units. The largest pallet services company in the country with plants in 27 states, the company serves almost half of the top 25 U.S. retailers and 20 of the top 100 largest publicly held U.S. manufacturing companies.

The department's Regional Office of the Solicitor in Philadelphia litigated the case.

OSHA enforces the whistleblower provisions of 22 statutes protecting employees who report violations of various airline, commercial motor carrier, consumer product, environmental, financial reform, food safety, motor vehicle safety, health care reform, nuclear, pipeline, public transportation agency, railroad, maritime, and securities laws.

Employers are prohibited from retaliating against employees who raise concerns about health and safety hazards in the workplace to the employer or the government. Employees who believe that they have been retaliated against for engaging in protected conduct may file a complaint with the secretary of labor for an investigation by OSHA's Whistleblower Protection Program.

Philadelphia Construction Companies Called to Prevent Falls After Five Accidents in a Month

An alarming series of tragic—and preventable—incidents in the greater Philadelphia area is prompting OSHA to call on the region's construction companies to ensure that their employees have and use proper equipment when required to protect them from work-related falls.

On July 7, 2016, 37-year-old roofing worker Roy Chacon died after he fell 25 feet to the ground at a Haverford worksite. His death was the latest of five incidents since June 13, 2016, that resulted in the death or injury of workers without proper fall protection.

"With basic fall protection in place, these employers could have prevented these tragedies. Our thoughts remain with the family and friends of the deceased worker and with those who must learn to cope with permanent disabilities because their employers failed to ensure a safe workplace," said OSHA Philadelphia Area Office Director Nicholas DeJesse. "Falls are the leading cause of death in the construction industry, and the use of proper fall protection can be the difference between death and workers going home to their families. We at OSHA cannot—and will not—tolerate employers who jeopardize worker safety."

OSHA's Philadelphia Area Office has conducted 129 inspections related to worker falls in the construction industry since October 1, 2015. The agency found falls accounted for 40% of all fatalities investigated by the office.

In addition to raising awareness of the importance of fall protection, OSHA, the City of Philadelphia's Licenses and Inspections and the Philadelphia Project on Occupational Safety and Health have announced a grassroots safety awareness campaign called "Grassroots Injury-Illness Prevention." Launching this month, GRIIP will bring together employers, workers, labor union and other workplace safety advocates for a series of forums seeking a collaborative approach to address construction site health and safety issues.

There are several ways to protect workers from falls including guardrail systems, safety net systems and personal fall arrest systems, including properly anchored body harnesses and lanyards; and through proper safe work practices and training. For more information on fall protection, visit OSHA's Stop Falls online resource or contact the Philadelphia Area Office at 215-597-4955.

Bennett Heat Treating and Brazing Co. Inc. Fined $87,500 for Exposing Workers to Multiple Hazards

On July 8, 2016, OSHA issued citations to Bennett Heat Treating and Brazing Co., Inc., for one other-than-serious and 29 serious safety and health violations.

OSHA initiated an inspection on January 8, 2016, as part of the agency's Health-High-Hazard Top 50 Local Emphasis Program. A follow-up inspection to address multiple safety violations noted during the first inspection took place on February 23, 2016.

The agency cited the serious violations because the company exposed employees to approximately 9-foot falls, improperly stored compressed gases, multiple electrical hazards and used corrosive chemicals without a proper decontamination shower. Bennett also failed to properly label anhydrous ammonia and provide employees handling the gas with proper personal protective equipment, labeling, and emergency showers.

"Bennett Heat Treating and Brazing Co. failed to follow required safety and health standards intended to protect its employees by preventing serious work-related injuries, long-term illnesses or worse," said Brian Flynn, acting director at OSHA's Parsippany, New Jersey, Area Office. "Falls are one of the leading causes of workplace deaths and the improper use of compressed gases and chemicals can lead to disaster if not addressed. This employer must immediately address the hazards we identified."

Proposed penalties total $87,500.

Materion Brush Inc. Fined $70,000 After Worker Fractures Three Fingers

OSHA has issued one willful safety violation to Materion Brush Inc., of Elmore, Ohio, after a worker had three fingers fractured when his right hand became caught in a pinch point as he operated a metal coiler.

After investigating the March 2016 injury, OSHA cited the company for failing to ensure the machine had adequate safety guards.

"OSHA has specific guidelines to protect workers from dangerous machinery, chemicals and other hazards in the workplace," said Kim Nelson, OSHA's area director in Toledo. "Materion needs to re-evaluate its safety and health programs to ensure employees are being protected from job hazards."

Proposed penalties total $70,000.

James T. Lynch Construction Co. Inc. Fined $65,800 for Exposing Workers to Cave-in Hazards

On May 11, 2016, inspectors from the Andover, Massachusetts, Area Office of OSHA observed employees of James T. Lynch Construction, water and sewer line contractor, working in a trench more than 6-feet deep that was not properly shored or otherwise protected against collapse. In addition, there was no ladder inside the trench to allow safe entry and exit by employees. The contractor also failed to contact Dig Safe, a not-for-profit clearinghouse that notifies participating utility companies of plans to dig prior to digging the trench. As a result of these conditions, OSHA cited James T. Lynch Construction for one willful and two serious violations of workplace safety standards.

Proposed penalties total $65,800.

"James T. Lynch Construction needlessly exposed its employees to a potentially fatal hazard. The walls of an unprotected trench can collapse suddenly and with great force, crushing and burying workers beneath tons of soil before they have the chance to react or escape. This employer knows that trenches five feet or deeper must be protected against collapse but did not slope the soil at a shallow angle, shore up the trench's sidewalls or otherwise protect against a cave-in," said Anthony Covello, OSHA's area director for Middlesex and Essex counties.

Jasper Remanufacturing Site Recertified in Safety Excellence Program

Jasper Engines and Transmissions, of Leavenworth, Indiana, received recertification as a STAR participant in the Indiana Voluntary Protection Program (VPP) and continues to be recognized as an outstanding workplace for occupational safety and health programs.

“Achieving VPP STAR recertification is an incredible accomplishment,” said Indiana Department of Labor (IDOL) Commissioner Rick J. Ruble. “Jasper Engines and Transmissions is responsible for the safety and health of nearly 1700 Hoosiers. Thanks to management and employee involvement, employees go home safe and sound every day.”

In business since 1942, Jasper Engines and Transmissions employs 800 people who remanufacture drive train components, which are distributed through a network of 43 branch and distributor locations throughout the United States. The Leavenworth facility is one of the company’s four production sites and one of three facilities certified as VPP participants.

Management and employees at the company show a commitment to safety and health standards with annual training and meetings, routine safety analysis, self-inspections, and more. The facility’s total case incident rate three-year average is 2.4% below the industry average.

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