Safety Tidbit #2.4 - Affirmative Defenses – Get out of Jail Free Card

Safety Tidbit #2.4 - Affirmative Defenses – Get out of Jail Free Card

Source: OSHA Field Operations Manual, CPL 02-00-160, Chapter 5, Section VI.

When an employer is cited by OSHA they most often will claim the instance was a one-off occurrence. Or, they will claim the employee or supervisor acted contrary to established protocols and training.  This is called the “Affirmative Defense.”

An affirmative defense is a claim which, if established by the employer and found to exist by the OSHA Compliance Safety and Health Officer (CSHO), will excuse the employer from a citation that has otherwise been documented.

Although employers have the burden of proving any affirmative defenses at the time of a hearing, CSHOs must anticipate when an employer is likely to raise an argument supporting such a defense and attempt to gather evidence to refute the affirmative defense. The following are explanations of common affirmative defenses.

1. Unpreventable Employee or Supervisory Misconduct or “Isolated Event.” 

·      To establish this defense in most jurisdictions, employers must show all the following elements:

o   A work rule adequate to prevent the violation;

o   Effective communication of the rule to employees;

o   Methods for discovering violations of work rules; and Effective enforcement of rules when violations are discovered.

Below are some questions to ask that will help you understand Employee or Supervisory Misconduct. The issue (which I have routinely and just this last week) is a removed machine guard that is put back during the inspection/visit.

·      Who removed the guard and why?

·      Did the employer know that the guard had been removed?

·      How long or how often had the saw been used without the guard?

·      Were there any supervisors in the area while the saw was operated

·      without a guard?

·      Did the employer have a work rule that the saw only be operated with the guard on?

·      How was the work rule communicated to employees?

·      Did the employer monitor compliance with the rule?

·      How was the work rule enforced by the employer when it found noncompliance?

2. Impossibility/Infeasibility of Compliance. Compliance with the requirements of a standard is impossible or would prevent performance of required work and the employer took reasonable alternative steps to protect employees or there are no alternative means of employee protection available.  Example: An unguarded table saw is observed.  The employer states that a guard would interfere with the nature of the work.  Now how many times have you heard?

·      Would a guard make performance of the work impossible or merely more difficult?

·      Could a guard be used some of the time or for some of the operations?

·      Has the employer attempted to use a guard?

·      Has the employer considered any alternative means of avoiding or reducing

·      the hazard?

3.Greater Hazard. Compliance with a standard would result in a greater hazard(s) to employees than would noncompliance and the employer took reasonable alternative protective measures, or there are no alternative means of employee protection.  Additionally, an application for a variance would be inappropriate. Example: The employer indicates that a saw guard had been removed because it caused the operator to be struck in the face by particles thrown from the saw.  Facts to be documented include:

·      Was the guard initially properly installed and used?

·      Would a different type of guard eliminate the problem?

·      How often was the operator struck by particles and what kind of injuries resulted?

·      Would personal protective equipment such as safety glasses or a face shield worn by the employee solve the problem?

·      Was the operator’s work practice causing the problem and did the employer attempt to correct the problem?

·      Was a variance requested?

·      I’ll add one more, could local exhaust ventilation be added to remove the flying particles at their source?

Remember, for each one of the rationales we worked through, a hazardous condition exists and workers may be hurt or killed.  As consultants, we need to make the employers aware of what they can do to reduce the hazard not, how they can use their “Get out of jail free card.”

Hope this was helpful and thanks for reading my Safety Tidbits ~ Bryan

http://safety-tidbits.blogspot.com/

Safety Tidbit #2.3 – Workplace labeling and containers for immediate use

Safety Tidbit #2.3 – Workplace labeling and containers for immediate use

Ironically, just about a year ago, in Safety Tidbit #9 I wrote about a similar issue to what I wish to discuss today (see - back then it was Safety Brief #9 – Hazard Communication Labeling).  Although this time I have a slightly different twist on labeling. See if you can catch the underlying problem.

While doing an audit, I noticed a container of hazardous material at a workstation.  The container had the word “oil” in magic marker on it. I asked my escort who worked in the area, and a person was flagged to come over.  I proceeded to quiz the worker on the contents of the container which she knew that it was oil. She also knew the purpose with which she needed to apply it to perform her job. However, when I asked if it was hazardous to her and what effect it might have on her, she was clueless.  Although, she did say they typically use rubber gloves when they apply the oil since the container leaks down the side, and the regular label always comes off, and also it takes her nail polish off (a dead give-away that the chemical is hazardous!). She told me that the magic marker worked much better.  I further inquired if she knew how or where to get more information about the contents of the container – deer in the headlights look!

Well, as you can imagine, I took a little time to explain about the safety data sheets … but I digress.  Back to our topic. OSHA’s hazard communication standard specifies “the product identifier and words, pictures, symbols, or combination thereof, which provide at least general information regarding the hazards of the chemicals, and which, in conjunction with the other information immediately available to employees under the hazard communication program, will provide employees with the specific information regarding the physical and health hazards of the hazardous chemical [1910.1200(f)(6)(ii)].”  The standard also states “the employer is not required to label portable containers into which hazardous chemicals are transferred from labeled containers, and which are intended only for the immediate use of the employee who performs the transfer. [1910.1200(f)(8)] OSHA further clarifies its intended use of this exemption to labeling in the second half of the paragraph: “For purposes of this section, drugs which are dispensed by a pharmacy to a health care provider for direct administration to a patient are exempted from labeling.

The employer explained that the container was filled by the employee and is only being used by that employee, so they felt they were in compliance with the 1910.1200(f)(8). I believe if a compliant label had been on the container the worker would have been able to answer my questions about the hazards of the material just by looking at the appropriately labeled container.  Also, there were other employees in the area so could the employer really say that only this one person uses the bottle?

Did you guess the underlying issue with this scenario? OSHA requires “Employers shall provide employees with effective information and training on hazardous chemicals in their work area …” The company did not give very “effective” training as the worker gave me the deer in the headlights look.  So, I cited the employer for both 1910.1200(f)(6)(ii) and 1910.1200(h)(1).

Hope this was helpful and thanks for reading my Safety Tidbits ~ Bryan

http://safety-tidbits.blogspot.com/

Safety Tidbit #2-2 – OSHA Penalties Are Getting a Raise!

Safety Tidbit #2-2 – OSHA Penalties Are Getting a Raise!

In 2015, Congress passed the Federal Civil Penalties Inflation Adjustment Act Improvements Act to advance the effectiveness of civil monetary penalties and to maintain their deterrent effect. The new law directs agencies to adjust their penalties for inflation each year using a much more straightforward method than previously available, and requires agencies to publish “catch up” rules this summer to make up for lost time since the last adjustments.

 “Civil penalties should be a credible deterrent that influences behavior far and wide,” said U.S. Secretary of Labor Thomas E. Perez. “Adjusting our penalties to keep pace with the cost of living can lead to significant benefits for workers and can level the playing field responsible employers who should not have to compete with those who don’t follow the law.”

The new method will adjust penalties for inflation, though the amount of the increase is capped at 150 percent of the existing penalty amount. The baseline is the last increase other than for inflation. The new civil penalty amounts are applicable only to civil penalties assessed after Aug. 1, 2016, whose associated violations occurred after Nov. 2, 2015.

OSHA’s maximum penalties, which have not been raised since 1990, will increase by 78 percent. The top penalty for serious and other-than-serious violations will rise to $12,471. The maximum penalty for willful or repeated violations will increase from $70,000 to $124,709.

An interesting violation is the failure-to-abate where the $12,471 maximum penalty can be assessed daily for each day the hazard remains unabated.  The $$$ add up pretty fast.  Remember, these maximum penalties are assessed before any permissible reductions.  There are four permissible reductions that are usually taken into consideration prior to the citation being sent to the employer:

            1. Gravity of the violation,

            2. Size of the employer’s company,

            3. The Good Faith of the employer,

            4. The employer’s history of previous violations.

Gravity considers the severity and probability of each violation and is a major reduction in penalties.  Severity looks at the injury which could result from the violation.  Severity is divided into three categories, high, medium and low.  Probability looks at the likelihood injury or illness could occur. Probability is either greater or lesser so that’s pretty easy.

The Size of the employer is the total employee count. A Good Faith is a penalty reduction in

recognition of an employer’s effort to implement an effective safety and health management system in the workplace.  History deals with the outcome from an OSHA inspection. If you had an inspection and it resulted in Serious, Repeat, Willful or Failure-to-abate violations you shouldn’t expect any reduction for history and you might get a 10% increase just for good measure.

Remember, the main purpose of the penalties is to deter employers from not complying with the OSHA Standards and to level the business playing field. Everyone should be permitted to work without worrying about getting injured or killed doing their job.

Thanks for reading and I hope this Safety Tidbit was informative ~ Bryan 

Safety Tidbit # 2-1 – Hear and Now – Safety Noise Challenge

Safety Tidbit # 2-1 – Hear and Now – Safety Noise Challenge

How many of you knew that OSHA kicked off a technology challenge in June?  Submissions are due September 30, 2016.  OSHA is seeking technological innovations that will help with hearing protection use in three main areas:

·      Technology that will enhance employee training and improve effective use of hearing protection.

·      Technology that alerts workers when hearing protection is not blocking enough noise to prevent hearing loss.

·      Technology that allows workers to hear important alerts or human voices while remaining protected from harmful noise.

While I applaud OSHA’s (and MSHA and NIOSH’s) drive to help workers to use their hearing protection, as an industrial hygienist, I wish they would push as much for the elimination of the sources of noise in the workplace.  Oftentimes, small changes in the workplace or with the operation significant reduction in noise levels can be realized. Furthermore, if we eliminate the source of noise the need for training and protection from noise becomes irrelevant. 

Noise is one of OSHA’s original health standards that actually came from OSHA’s precursor the Walsh-Healey Public Contracts Act and is listed in OSHA’s origination Federal Register Notice on May 29, 1971. It still even has its same standard number 1910.95. However, although the standard was amended in 1982 to include medical surveillance there are still 22 million workers who run the risk of losing their hearing due to excessive noise in the workplace.

I implore all workers and employers to review their workplaces for exposures to noise and evaluate their risk.  Then use some simple tools available from OSHA’s website on Occupational Noise to reduce the incidence of noise. Also, if you are in the market for new equipment you might check out NIOSH’s Buy Quiet webpage to find quieter equipment for nominal differences in price.  If you need further assistance, please call PA OSHA Consultation or your company safety and health consultant.

Remember Personal Protective Equipment is the last line of defense in protection against workplace hazards and have been shown time and again to be ineffective due to improper or lack of use.