Incident reporting is critical, and near-miss reporting is important, but hazard reporting is also extremely necessary for the safety of your workforce.
All hazards that are found in the workplace should be reported immediately to a supervisor, the safety department or management. This is a standard practice that should exist in any workplace and every employee should be made aware that this is the appropriate action to take should they encounter any hazard or potential hazard they discover. However, many employees may feel (justified or not) that the hazards they encounter, sometimes on a daily basis, are just how things are and reporting them is not necessary. Designing, setting up and communicating a Hazard Reporting Program is a good idea for any business to help avoid this potentially dangerous attitude. Implementing a Hazard Reporting Program will help ensure that your workplace is safer for your employees and reduce costly incidents or business interruptions.
Employees should be trained in hazard recognition and avoidance. Hazard Reporting is a critical part of this training so that employees know exactly what to do when they encounter a hazard they can’t immediately correct. Don’t get overwhelmed by the word “training” because you can design the training to be as simple as you need for your specific team. Depending on the types of hazards your employees might encounter, this training could be a mandatory all-day in-person training session for high-hazard jobs, or on-the-job training led by a competent supervisor, or even a 30-minute safety meeting. For low-hazard jobs, at least consider an annual online training or email reminder so employees understand hazard reporting is not only acceptable but also expected.
The Occupational Safety and Health Administration (OSHA) is the government agency responsible for enforcing the whistleblower retaliation provisions of numerous laws protecting workers in a wide-range of industries. The Sarbanes–Oxley Act of 2002 and the Dodd–Frank Wall Street Reform and Consumer Protection Act, which contain whistleblower protections and focus on combating corporate and accounting fraud, are likely the most well known of these laws. But there are many other laws that contain anti-retaliation causes of action for whistleblowers, such as the Surface Transportation Assistance Act of 1982 (creating safety standards for commercial vehicles), the Seaman’s Protection Act (improving safety on seagoing vessels), the Clean Air Act (reducing air pollution), and the Consumer Product Safety Improvement Act of 2008 (protecting consumers from defective products) that are less well-known.
Data provided by OSHA, a federal agency under the purview of the U.S. Department of Labor, shows that the number of whistleblower complaints filed has increased by 29 percent over the last five years, from 7,408 complaints in 2014 to 9,566 complaints in 2018. In 2018, OSHA opened full investigations into 3,007 of those complaints. While the number of complaints has gone up, the number of OSHA investigators has declined. OSHA had 76 investigators at the end of 2018, down from 100 in 2014.
OSHA’s increased workload, combined with the loss of investigators, has led to it being unable to timely complete its investigation process. Pursuant to its governing regulations, OSHA has 90 days to complete its whistleblower investigations. But last year, it took OSHA on average 272 days to make a determination on a complaint. The backlog has gotten so bad that in some cases OSHA may be aware of a complaint for months before an employer is contacted. The delays have led to employees pursuing their claims in federal court, after the expiration of the 90-day period, rather than at the administrative level, devaluing the administrative exhaustion requirements of many of the statutes containing whistleblower provisions. The delayed process has also created problems for employers, who have had problems locating witnesses, months after the fact, to disprove a complainant’s “stale” allegations.
Employers will want to prepare themselves for these types of claims and the agency delays associated with increased whistleblower activity nationwide. Establishing policies and procedures regarding how to log, track, and handle internal complaints that could lead to federal whistleblower claims are one way Employers can help mitigate some of the issues that result from delays at the agency level. With the right strategy, it is possible to successfully defend against OSHA whistleblower claims even in this era of increased complaints.
Source: The National Law Review
Construction Contractor Charged With Lying to OSHA
A construction contractor twice orders, via text message, his employees to work on a roof, and both times the employees fall through. The contractor later testifies in a deposition that he did not ask them to work on the roof. Lesson No. 1: don’t lie when you’re providing sworn testimony, especially when there exists discoverable evidence to the contrary. Lesson No. 2: be properly prepared and familiar with all relevant facts before providing testimony or statements during an investigation.
Between May and July 2018, New Jersey-based RSR Home Construction was cited twice by OSHA after two incidents on the same job in which workers fell from a roof and were seriously injured. As part of its investigation into the safety incidents, OSHA took the sworn deposition of the company’s owner, Robert Riley.
According to the criminal complaint filed against RSR earlier this month in Federal District Court in New Jersey, OSHA specifically questioned Riley at his deposition about whether he had directed a construction worker, at any time, to perform repairs on the roof, or to direct others to perform repairs to the roof. United States v. Riley, No. 19-MJ-3515 (D.N.J. Feb. 14, 2019). Riley testified, unequivocally, that that he had not.
OSHA, however, discovered that Riley had in fact sent text messages to employees on both occasions directing them or others to perform repairs on the roof. Riley now faces a perjury charge in federal court where, if convicted, he faces a potential penalty of five years in a prison and a $250,000 fine.
For employers, this case provides yet another reminder that it is never a good idea to lie to government inspectors, especially when providing sworn testimony. This also demonstrates the importance of being properly prepared and familiar with all relevant facts before providing testimony or statements during an OSHA investigation. In this age of electronic media, emails, video, and text messages, data is simply too readily available to those parties needing it to prove the truth.
A New Jersey safety trainer recently pleaded guilty to selling more than 100 fraudulent training cards to workers. “OSHA’s outreach training serves to educate workers about safety issues they will encounter on the job site,” said OSHA Regional Administrator Richard Mendelson. “Falsifying documents not only undermines the program, it fails to protect workers on the job.” OSHA will refer fraudulent activity to the Department of Labor’s Office of Inspector General, and trainers caught falsifying information will be subject to criminal prosecution. For more information, see the news release.
More than a dozen water systems in Michigan were found to have excessive lead compared to federal standards in the second half of 2018, according to a new report.
The 13 systems that failed the federal test were throughout the state, MLive reported Friday, citing data it had obtained from the Michigan Department of Environmental Quality.
One water system served fewer than 100 homes, while another served a city of about 22,000 people. Seven systems were found to have lead levels twice as high as will be legal in Michigan starting in 2025, according to the report.
The maximum legal level of lead in the U.S. is 15 parts per billion (ppb). In Michigan, 27 systems were found to have lead levels of at least 13 ppb, MLive reported.
Michigan last year began enforcing the strictest rules for lead in drinking water in the country following the water crisis in Flint. The state said it would limit lead to 12 ppb in 2025.
Flint appeared to have safe lead levels in the latest test of its water. Ninety percent of water samples tested in the city in the latter half of 2018 had lead levels of four ppb or less.
Employers subject to an on-site inspection by OSHA or one of the state agencies that regulate workplace safety and health should take preventive steps to prepare for such an inspection and have a plan for handling it and any follow-up that may be necessary. This article outlines best practices for getting ready for and managing such an inspection.
Prior to an Inspection
As with most things in life, it is better to be prepared before a crisis than to simply react at the last minute. In anticipation of a visit by OSHA, we recommend that employers:
Display the OSHA poster where notices to employees are posted.
Display a written commitment from management to workplace safety.
Conduct a tailored safety audit and hazard assessment to spot and correct any hazards.
Assign responsibility to a management official for safety and health compliance and for dealing with employees, OSHA, and others concerning workplace safety and health.
Determine which OSHA standards and regulations apply to your workplace. Ensure that all required written programs, plans, training and recordkeeping are complete and updated annually. Ensure that the facility’s personal protective equipment (PPE) hazard assessment has been completed.
Train designated management personnel how to properly handle and respond to an OSHA inspection, as well as approaches by law enforcement officials, building or fire inspectors, and inspectors from other safety regulators.
Determine company policy on whether to require a warrant prior to allowing an inspection to be conducted.
Foster employee participation in safety and health management. Instill employee commitment to safe work practices.
Establish a crisis management team to deal with catastrophic occurrences, fatalities, and related media attention.
Ensure that injuries and illnesses are properly recorded and supporting documentation is up-to-date and available.
Ensure that Hazard Communication Plans and related materials are available.
Provide appropriate equipment (i.e. camera, video, monitoring, etc.) for conducting inspections.
Review previous citations. Ensure that all previously-required abatement has been completed, and previously-cited hazards have not reoccurred.
Ensure coordination between all employers on multi-employer work sites.
Know and follow reporting requirements for work-related fatalities, amputations, loss or an eye and hospitalization of one or more employees.
Handling the Inspection
OSHA’s visit can be broken down into three phases: initial contact with the Compliance Officer (CO); the walkaround; and the closing conference. With proper planning, each of these steps can be managed effectively.
1. Initial Contact and Opening Conference
Upon arrival, direct the CO to the company’s designated Safety Officer who will take the lead in managing the process for the Company. Here are a few tips for this process:
No employees, other than the facility manager and/or the company’s designated Safety Officer, should communicate with the CO prior to the opening conference.
The company’s facility manager or Safety Officer should review the CO’s credentials and obtain his or her business card with an address and phone number.
Determine from the CO the purpose, scope, and any other significant reasons for the visit to the facility. If the inspection is based upon a complaint, ask for a copy of the complaint and attempt to limit the inspection to those matters described in it.
Determine whether the CO has a warrant to conduct the inspection. If yes, determine the scope of the warrant and take action as appropriate to limit the inspection to that scope.
Notify the company’s counsel prior to the opening conference to receive any instructions or to raise defenses or objections.
Notify any designated employees’ representative (if applicable) of OSHA’s presence.
Participate in the opening conference with the CO to establish: (i) areas of focus for the inspection; (ii) scope and route for the walkaround; (iii) any designated trade-secret areas or processes; (iv) procedure for conducting employee interviews and/or producing documents; (v) schedule of interviews; (vi) documents to be reviewed; (vii) procedure for requesting copies of any employee complaints; (viii) rules and procedures OSHA will be expected to follow; and (ix) procedures for conducting air or noise monitoring or sampling.
Provide necessary safety and health training to the CO prior to allowing access to restricted areas.
Ensure that the CO wears all necessary personal protective equipment and follows all required company safety and health policies.
2. The Walkaround
As with the opening conference, the company safety officer or manager should accompany the CO at all times during the inspection except during interviews of hourly employees.
A company safety officer or manager should take detailed notes, including date(s) of inspection, areas inspected, matters discussed with the CO and identifying employees interviewed by OSHA.
If, during a complaint inspection, the CO deviates from matters implicated by the complaint, then the company safety officer should inquire as to the reason for such deviation.
When appropriate, photographs should be taken of all areas inspected by the CO as well as all scenes and items photographed. Video should be utilized if the CO makes any video records.
The company’s designated safety officer should immediately correct any hazards identified by the CO, if possible, but should not acknowledge that there is any violation or that a citation would be appropriate.
No management or supervisory employee should provide information or make statements to the CO without approval from the company’s designated safety officer or the company’s counsel. The company’s designated safety officer or counsel should be present at all management or supervisor interviews conducted by the CO.
All applicable work rules and safety procedures should be enforced in connection with the CO’s walk-around team during the inspection.
The CO should be asked to make in writing all requests for Company information and/or documents.
The company’s counsel should review all requests for documents and information as well as the information and documents themselves prior to such being provided to the CO.
Document all samples or monitoring tests taken by the CO. Request copies of all sampling and monitoring results and reports, as well as all photographs and videos taken. The company should request that the CO schedule any sampling and monitoring activities at times when the company can conduct its own sampling and monitoring. The company’s designated safety officer should advise the CO that only side-by-side monitoring will be permitted.
3. The Closing Conference with OSHA
During the closing conference, the company’s designated safety officer should simply listen to any proposals made by the CO, gather information and:
Not argue or debate any proposed findings.
Take detailed notes about any alleged hazards (or other problems) identified by the CO, along with applicable safety standards and suggested abatement procedures.
Remind the CO about the scope of the inspection as noted in the opening conference, if deviation has been observed.
Obtain from the CO an acknowledgment of receipt concerning documents provided.
Provide the CO with the name, title, address, phone and fax numbers for the person to whom all correspondence should be directed.
If directed by the Company’s counsel, provide additional information and documentation relevant to and supportive of the Company’s position, as well as any information that establishes abatement of any alleged violation.
After the Inspection
Following the inspection, other actions may be required, including:
Follow-up on all sampling and monitoring reports from OSHA, if not previously obtained.
Review all areas noted by the CO and implement appropriate abatement.
Provide the company’s counsel with copies of all documents provided to OSHA and all of the notes, photographs, videos, etc., taken during the inspection.
A written request to OSHA to ensure that all trade secrets and proprietary information disclosed during the inspection are kept confidential.
If the facility is issued safety violation citations, you must also:
- Post the citation in an area where employee notices are normally posted with penalty amounts deleted. (check rules applicable to state plans concerning posting requirements.)
- Immediately notify the company’s counsel about the safety violation citation and send a copy to counsel.
- With the advice of counsel, schedule an informal conference with OSHA.
- Post the OSHA Notice to Employees of informal hearing.
Where an agreement cannot be obtained quickly, the company must file a Notice of Contest within 15 working days following receipt of citations. Some state plan states have different procedures. An employer who misses a deadline for filing a Notice of Contest is ordinarily prohibited from obtaining an extension or to overcome the default.
Workers in manufacturing plants are at high risk for exposure to respirable crystalline silica – also known as quartz dust. When the mineral silica is cut, grinded or drilled, it transforms into microscopic dust particles that can present a dangerous health hazard for individuals who inhale them. Workers exposed to the deadly dust can face a lifetime of medical issues and incur significant medical treatment costs. For many, the benefits recovered through a Workers’ Compensation claim can be a lifeline.
Over three million individuals will face exposure to dangerous quartz dust at their workplaces this year. Even the presence of a small amount of airborne silica dust can be hazardous for workers. The following construction materials frequently contain silica: soil, sand, concrete, granite, masonry, rock, brick, fiberglass, and other landscaping mediums.
Workers in the construction, oil, and gas industries are more likely to inhale the dangerous silica dust. Some of the construction tasks that can create respirable silica include:
Cutting granite slabs or counters
Flat surface grinding
Any activity that cuts into quartz materials has the potential for creating these hazardous airborne particles.
Exposure to respirable silica dust may cause silicosis, lung disease, lung cancer, tuberculosis, congestive heart failure, and pulmonary disease. These medical conditions can result in permanent disability. Federal law requires some construction workers be offered medical surveillance services to monitor for the development of these conditions. In addition to free medical examinations, workers frequently exposed to quartz dust may receive chest x-rays and pulmonary functioning testing.
Workers who breathe in respirable silica often require extensive medical treatments including hospitalizations, pulmonary therapy, and physical rehabilitation services resulting in an inability to work. Workers’ Compensation benefits may be available to help with medical costs and lost wages.