The majority of these corrections change references in other OSHA standards made to ‘‘material safety data sheet’’ or ‘‘MSDS’’ to ‘‘safety data sheet’’ or ‘‘SDS,’’ which OSHA inadvertently missed in its original publication of the final rule. Other corrections include correcting values or notations in tables, and updating references to terms defined in the Hazard Communication Standard Final Rule, published on March 26, 2012.
OSHA Announces Interim Final Rules on Seaman’s Protection Act Whistleblower Procedures
OSHA recently published interim final rules that establish procedures governing whistleblower complaints filed under the Seaman’s Protection Act. The Act protects seamen from retaliation for engaging in protected activity under the Act, including providing information to the government about an alleged violation of maritime safety laws or regulations. OSHA is requesting public comment on the interim final rules.
On October 15, 2010, Congress amended the Seaman’s Protection Act by enacting Section 611 of the Coast Guard Authorization Act of 2010. Among the revisions, Congress transferred the administration of the whistleblower protections in the Act to OSHA, which were previously enforced through federal court. Congress also expanded protected activities under the Act, and adopted the procedures and burdens of proof provided in Section 31105 of the Surface Transportation Assistance Act.
The interim final rule establishes the procedures and time frames for handling retaliation complaints, including procedures and time frames for filing complaints with OSHA, investigations, appeals of OSHA determinations to an administrative law judge for a hearing, review of ALJ decisions by the Administrative Review Board, and judicial review of the secretary of labor’s final decision.
Submissions may also be sent via facsimile or mail. See the Federal Register notice for details. Faxed submissions, including attachments, must not exceed 10 pages and should be sent to the OSHA Docket Office at 202-693-1648. Comments submitted by mail should be addressed to the OSHA Docket Office, Docket No. OSHA-2011-0841, US Department of Labor, Room N-2625, 200 Constitution Ave. NW, Washington, D.C. 20210.
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OSHA Sues Florida Construction Company for Firing Whistleblower
The US Department of Labor has filed a lawsuit in the US District Court for the Middle District of Florida, Fort Myers Division, against Duane Thomas Marine Construction, LLC, and owner Duane Thomas for terminating an employee who reported workplace violence, in violation of Section 11(c) of the Occupational Safety and Health Act.
The suit resulted from an investigation by the department's Occupational Safety and Health Administration that was initiated upon receiving a complaint from the employee, who worked at the company's custom marine dock installation services site on Marco Island.
The suit seeks back wages, interest, and compensatory and punitive damages, as well as front pay in lieu of reinstatement. Additionally, it seeks to have the employee's personnel records expunged with respect to the matters at issue in this case and to bar the employer against future violations of the OSH Act.
The employee alleged that, on numerous occasions between December 9, 2009, and February 25, 2011, Mr. Thomas committed workplace violence and created hostile working conditions. He allegedly behaved abusively, made inappropriate sexual comments and advances, yelled, screamed, and made physically threatening gestures, in addition to withholding the employee's paycheck. The employee, who worked directly for Thomas, reported to him that he was creating hostile conditions. On February 25, 2011, the employee filed a timely whistleblower complaint with OSHA alleging discrimination by Thomas for having reported the conditions to him. On March 18, 2011, Thomas received notification of the complaint filing. On March 23, 2011, Thomas had computer passwords changed in order to deny the employee remote access to files and then terminated the employee. OSHA's subsequent investigation found merit to the employee's complaint.
"Employees have the right to raise workplace violence concerns without fear of retaliation," said Teresa Harrison, OSHA's acting regional administrator in Atlanta. "OSHA will continue to enforce the whistleblower provisions of the OSH Act to protect employees who report violations."
Maine Dentist to Pay $72,000 to Former Employees who Raised Workplace Health Concerns
The US Department of Labor has secured a consent judgment in federal court ordering a Bath dentist to pay a total of $72,000—$38,000 and $34,000, respectively—to two former employees and take other actions to resolve alleged violations of the anti-retaliation provisions of the Occupational Safety and Health Act. The department filed suit in September 2012 against Tammy L. Cook, doing business as Bath Family Dental, following a whistle-blower investigation by its Occupational Safety and Health Administration.
According to the complaint, two dental hygienists at Bath Family Dental began in late 2010 to register concerns with Cook about what they perceived as lapses in infection control procedures. Attempts to resolve the issues in-house were unsuccessful, and one of the hygienists filed a complaint with OSHA. OSHA opened an inspection on October 4, 2011. Cook fired one of the employees on October 18, and placed the other on probation, leading to her resignation.
"This judgment upholds the clear legal right under the Occupational Safety and Health Act for employees to raise workplace safety and health concerns to their employers without fear of termination or other forms of reprisal," said Michael Felsen, the department's regional solicitor for New England. "It also reinforces the department's commitment to taking all appropriate legal action, including a lawsuit, to protect that right."
"Employers must remember that workers have a voice in the workplace regarding their health and well-being," said Marthe Kent, OSHA's New England regional administrator. "Firing or forcing employees from their jobs for raising legitimate safety and health issues is unacceptable."
The judgment, entered in the US District Court for the District of Maine, requires Cook to make the payments in monthly installments and provide proof of payment to OSHA, expunge all references to the matter from the former employees' personnel records and provide a written, neutral confirmation of employment if another prospective employer requests a job reference for either worker.
Cook will also post at her workplace an OSHA poster concerning rights and obligations under the OSH Act and provide all employees with the OSHA "Your Rights as a Whistle-blower" fact sheet. Finally, she agrees not to pursue a number of collateral actions she had initiated, which had the potential to significantly impact the livelihood and economic well-being of one of the complainants. In the settlement, Cook neither admits nor denies the allegations in the department's complaint.
OSHA Fines Grede Wisconsin $274,500 for Exposing Workers to Dangerous Respirable Dust
OSHA has cited Grede Wisconsin Subsidiaries, LLC, for 28—including three repeat—health violations under the national and regional emphasis program on primary metal industries for exposing workers to crystalline silica dust and other hazards at the Browntown iron foundry following an August 2012 inspection. Proposed penalties total $274,500.
"Grede Wisconsin Subsidiaries is compromising the safety of its workers by allowing previously cited deficiencies to continue," said Kim Stille, OSHA's area director in Madison. "Employers who are cited for repeat violations demonstrate a lack of commitment to workers' well-being. OSHA is committed to protecting workers on the job."
The three repeat violations are for exposing workers to respirable dust containing silica above the recommended exposure level, unguarded conveyor tail pulleys and failing to apply energy isolating devices to equipment during service and maintenance. A repeat violation exists when an employer previously has been cited for the same or a similar violation of a standard, regulation, rule or order at any other facility in federal enforcement states within the last five years. Similar violations were cited in 2010 following an inspection at the company's Berlin plant and in 2009 at the Browntown plant.
A total of 24 serious violations include OSHA's confined space permit regulations; excessive accumulation of sand and dust; unguarded railings; failing to provide adequate personal protective equipment for eyes, hands, and face to protect against metal splash hazards; provide hazardous energy control procedures; provide employees effective information and training on hazardous chemicals in their work area; and provide employee representatives with access to exposure records within a reasonable time frame. Several violations were cited regarding respiratory protection, including a lack of medical evaluations, fit testing and training. A serious violation occurs when there is substantial probability that death or serious physical harm could result from a hazard about which the employer knew or should have known.
One other-than-serious violation was issued for not allowing OSHA representatives prompt access to employee exposure records. An other-than-serious violation is one that has a direct relationship to job safety and health, but probably would not cause death or serious physical harm.
OSHA has placed Grede Wisconsin Subsidiaries in its Severe Violator Enforcement Program, which focuses on recalcitrant employers that endanger workers by committing willful, repeat or failure-to-abate violations. Under the program, OSHA may inspect any of the employer's facilities or job sites.
Grede Wisconsin Subsidiaries employs about 200 workers at the Browntown facility, which specializes in the production of castings in ductile and gray iron and is operated by Southfield, Michigan-based Grede Holdings, LLC, which has 21 facilities in the US, Europe, and Japan. Since 2010, the company has been inspected by OSHA 20 times, resulting in numerous violations, including seven issued in November 2012 after a follow-up inspection at its Berlin plant.
OSHA Fines Soft Drink Company Nearly $130,000 for Repeat Violations
OSHA has cited A-Treat Bottling Co., with 16 safety and health violations, including 14 repeat, at its Allentown facility. OSHA's August 2012 inspection was conducted as a follow-up from an earlier inspection in January 2011. Proposed fines total $129,745.
The repeat violations, with a penalty of $125,895, are due to electrical hazards, failing to conduct baseline and annual audiograms; establish noise engineering controls; provide noise training; provide machine guarding, machine-specific hazardous energy control procedures and training; ensure means of egress was unobstructed; and ensure proper use of flexible cable. Similar violations were cited at the Allentown facility in 2008, 2010, and 2011.
One serious violation, carrying a $3,850 fine, involved improper material storage in an electrical service room.
"By continuing to disregard OSHA standards, A-Treat Bottling continues to put its workers at risk of serious injuries," said Jean Kulp, director of OSHA's Allentown Area Office. "OSHA will not tolerate employers jeopardizing the safety and health of workers."
One other-than-serious violation with no monetary penalty was cited for a defective forklift on a powered industrial truck.
OSHA Cites Shindler Tire Recycling LLC After Failure to Abate Safety Violations
OSHA has cited Shindler Tire Recycling, LLC, in Milwaukee with 12 safety violations after a November 2012 follow-up inspection found the employer has failed to abate previous citations by developing a written hazard communication program and training workers on its requirements. Proposed fines total $53,856.
"Employers, such as Shindler Tire Recycling, have a responsibility to correct safety violations and to train their workers on job safety and health requirements," said Carlos Gallegos, OSHA's acting area director in Milwaukee. "OSHA is committed to protecting workers on the job, especially when employers fail to do so."
Two failure to abate citations were issued for failing to provide documentation as to how the employer corrected deficiencies involving the lack of a written hazard communication program and information and training for employees. These were cited by OSHA in an August 2011 inspection.
Eight repeat violations address the lack of housekeeping and dust accumulations; inadequate guarding on machinery, including nip points, a wheel work rest and wheel tongue guard; storing tires and waste piles in a manner that created a collapse hazard; failing to have available material safety data sheets, cover unused openings on electrical equipment and maintain electrical equipment free from hazards. Similar violations were cited during the August 2011 inspection.
One serious violation was cited for failing to enclose horizontal shafting. Additionally, one other-than-serious violation was issued for failing to cover a floor hole.
Shindler Tire Recycling is a recycling center for rubber tires that are shredded and processed through grinders to create a product suitable for burning. The company has 15 business days from receipt of the citations and penalties to comply, request an informal conference with OSHA's area director or contest the findings before the independent Occupational Safety and Health Review Commission.
Employers to Post Annual Work-Related Injury and Illness Summary
The California Department of Industrial Relations’ Division of Occupational Safety and Health (DIR/DOSH), also known as Cal/OSHA, is providing 2013’s notification to all employers to post the annual summary of all work-related injuries and illnesses (Form 300A). The form must be posted at their place of business from February 1 through April 30.
The Form 300A is available for free download on DIR’s website. The form is a required workplace posting so that employees may have the opportunity to review any injury or illness that took place at their worksite in the prior year. Former employees and their representatives have a right to review the form as well. The form must be posted in a visible and easily-accessible area.
“Transparency and accountability are very important aspects of the employer-employee relationship,” said Cal/OSHA Chief Ellen Widess. “This form gives employees, former employees, and their representatives access to worksite injury and illness data. Full and accurate reporting of injuries and illnesses is vital to understanding hazards in the workplace. It is also a good tool to determine where additional safety and health measures are needed.”
Employers are required to fill out and post the Form 300A every year, even if no workplace injuries occurred. Information that must be disclosed on the form includes total number of cases with days away from work, total number of days injured or sick employees spent away from work, and the different types of injury or illness suffered.
Employers who would like more information on their posting requirements or who would like more information on how to reduce workplace injuries and illnesses are encouraged to visit the DIR Employer Information page. In addition, if an employer would like to speak with a Cal/OSHA consultant, free assessments are available to California businesses by calling the Cal/OSHA Consultation Program 1-800-963-9424.
Employees with work-related questions or complaints can call the California Workers’ Information Hotline at 1-866-924-9757.
Indiana Department of Labor Launches Statewide Healthcare Worker Safety and Health Initiative
The Indiana Department of Labor recently launched a new statewide safety initiative aimed at reducing the high worker injury and illness rate prevalent throughout the healthcare industry.
Indiana Department of Labor Commissioner Sean M. Keefer announced the initiative at Terre Haute’s Union Hospital recently alongside State Health Commissioner William C. VanNess II, M.D., and Union Hospital CEO Scott Teffeteller.
According to the most recent statistics, healthcare has the second highest worker injury and illness rates in the state. Hoosiers who work in healthcare are more likely to become injured or ill than those who work in industries like manufacturing and construction, which are often assumed to have higher injury and illness risks.
“All Hoosier workers deserve the safest working environment possible,” said Keefer. “The Indiana Department of Labor is reaching out to healthcare industry employers and employees and encouraging them to take a proactive role in making employee safety and health a top priority.”
The Indiana Department of Labor’s initiative is focused on addressing the most common injuries and illnesses found within the healthcare industry. These include slips, trips, and falls; repetitive stress injuries; incidental needlesticks; and exposure to blood-borne pathogens.
“Healthcare workers are extremely important to Hoosiers,” said VanNess. “Continuing to support safe and healthy working environments for those workers allows Hoosiers to have access to the most qualified healthcare professionals available, improving the overall health of our state.”
Union Hospital, which is the first collaborator with the Indiana Department of Labor on this initiative, was recognized for its workplace safety programs in 2011 with the Governor’s Workplace Safety Award.
“We’ve seen the benefits of developing a safety culture firsthand,” said Teffeteller. “Making a concerted effort to prioritize safety in the workplace has led to a reduction of worker injuries and illnesses, improved working conditions, and increased employee morale. Worker safety and health make financial sense and, more importantly, protecting your employees is the right thing to do.”
The Indiana Department of Labor’s OSHA Consultation Division, INSafe, will spearhead the educational efforts of the department. This outreach initiative will focus on providing and connecting employers and employees to available resources to make these establishments safer and healthier places to work and serve patients and customers. Resources available include articles for newsletters, flyers/posters, public service announcements, webpage banners, and more. Healthcare facilities targeted in this initiative include hospitals, nursing homes, and residential care facilities.
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