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Fisher & Phillips LLPATTORNEYS AT LAW

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Don’t Be Caught Unprepared!

Managing New and Expensive OSHA Changes

July 28, 2015

Presented By:

Howard A. Mavity

[email protected]

(404)231 1400

mailto:[email protected]


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• Have you seen signs of conciliation and

cooperation between governmental branches?

• Is the wild early Presidential campaign drawing

Democratic candidates to the right, a la Bill

Clinton?

• Have you seen the usual abandon ship by

Presidential Appointees, which typically begins

around now?

• Any reduction in use of Executive Orders,

Interpretations and Directives?

THE ADMINISTRATION IS GOING OUT WITH A

ROAR AND NOT A WHIMPER


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HAVE YOU OBSERVED A SLOWING OF REGULATORY EFFORTS?

• Government Contractors “Black List” Executive Order (Fair

Pay and Safe Workplaces E.O.)

• Proposed Wage-Hour Overtime Salary Test Changes

• Fierce Focus on establishing Joint Employer status between

franchisors/franchisees and Employers and Contractors

• NLRB Attacks on Employer Handbooks, Rules, Social

Media Management and Disciplinary Processes

• OSHA “Ergonomics” Emphasis on healthcare, distribution

and logistics


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PROPOSED CHANGES TO THE OVERTIME SALARY

EXEMPTION TEST

• An increase in the salary basis of $455 per week (or $23,660 annually) for “white

collar” exempt employees to $50,440 or $970 per week in 2016, with Annual

(and automatic) updates in salary level.

• An increase in the salary basis of $100,000 to $122,148 annually for “highly

compensated” employees in 2016, with Annual (and automatic) updates in salary

level.

– Effect on operations – cell phone usage and after hour work.

– Timekeeping and recordkeeping in a virtual and mobile workplace.

– Morale.

– Focuses Plaintiff Counsel on all aspects of wage-hour compliance.


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NLRB ASSAULT ON POLICIES

AND PROCEDURES

• Even if no union is involved, if you fire an employee for violation of

an invalid rule, you’ll be stuck with reinstatement, back pay and

posting an “NLRB Notice.”

• Unlawful rules and procedures could be used by a union to

overturn a “No” election vote.

• You might have to post an NLRB Notice acknowledging our bad

behavior and reminding employees of their right to organize.

• Changes harm your ability to investigate wrongdoing, enforce No

Harassment and Professionalism requirements or protect the

Company’s interest


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• Beer distribution is not an especially hazardous industry.

• Often there is more focus on vehicular safety and security

than on OSHA compliance

• Safety efforts are not the same as OSHA “compliance,” and

vice versa

• OSHA did not focus much in the past on the industry

• Lack of OSHA activity is not the same as good compliance,

and this distinction can catch you off guard

OSHA’S AND YOUR INDUSTRY


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• OSHA’s new “Reporting” requirements make it more likely you’ll

be inspected.

• OSHA’s emphasis on ergonomics in distribution, and especially

beverage and bottling;

• Site-Specific Targeting ($162,500 beer distributor citation)

• OSHA’s Temporary Employee Initiative heavily affects distribution;

OSHA’S FOCUS ON YOUR INDUSTRY


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• OSHA cites employers for violations of its “general industry” standards

found at 29 CFR 1910 (www.OSHA.gov).

• Intent is not required.

• Most violations are classified “serious.”

• If any of a company’s locations are fined for again violating the same

standard within 5 years, it’s a Repeat violation costing up to $70,000 per

item.

• OSHA must prove a hazard, employee exposure, an applicable standard,

and that the employer “knew or should have known of the violation with the

exercise of due diligence.”

• Knowledge of ANY supervisory employee is imputed to the employer.

• Quality of your safety processes determines “due diligence.”

HOW OSHA OPERATES


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OSHA is focusing on “Repeat” Citations for companies with multiple locations, and

even “safe” industries such as retailers get hit with Repeats.

• OSHA fines NJ Dollar Tree Stores $50,000.

• Missoula Dollar Tree $217,000 for “willfully putting workers at risk.”• Massachusetts Store $177,800.• Texas Dollar Tree Store $262,500.• Delaware Store $103,000 for second time violations.• $121,000 to NJ Store for repeat violations.• Texas Store $116,200 penalties.• Store $143,000 for willful violations.• $121,000 to Illinois store.

Dollar Tree is being portrayed as a bad employer, but what factors might actually cause these problems?

Could it happen to you?

THE EFFECT OF REPEAT CITATIONS

ON COMMON VIOLATIONS


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•The company exposed permanent and temporary workers .

•Initiated as part of the Site-Specific Targeting Program* that inspects workplaces with the

highest injury and illness rates, the investigation found two willful and eight serious violations.

–“Employees faced risk of serious injuries due to not providing appropriate training, properly

working equipment, and safe exit routes, which is unacceptable,"

•"OSHA investigators determined that powered industrial truck operators were not trained and

defective trucks were not removed from service. The willful violations have a $121,000 penalty.

•A willful violation is one committed with intentional, knowing or voluntary disregard for the law's

requirement, or with plain indifference to the law.

•The warehouse also had obstructed exit routes, damaged storage racks and additional

powered industrial truck hazards.

•The company failed to provide both chemical hazard communication and powered industrial

truck training. These violations carry a $41,500 penalty.

OSHA NATIONAL PRESS RELEASE

$162,500 BEER DISTRIBUTION CITATION

https://www.osha.gov/temp_workers/

https://www.osha.gov/OshDoc/Directive_pdf/CPL_02-14-01.pdf


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• Missing even one forklift operator for retraining every three years or after

an employee had an accident and demonstrated a need for retraining

• Blocked exits, electric cabinets or extinguishers

• Missing labels on electric cabinet switches, holes or missing switches in a

cabinet, damaged extension cords or missing ground plugs, or using

temporary wiring where permanent wiring is required

• Failure to document Hazard Communication training or failure to retrain

employees when introducing a new category of chemical hazard or

failure to have eye protection for battery charging activities or truck

cleaning, etc.

• Damaged racks, pallet jacks and docks

• Temporary employees or contractors on site did not receive the same

training as full time employees

ROUTINE LOW HANGING FRUIT

OSHA VIOLATIONS


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• Who is responsible for Facilities and Maintenance?

• Who is responsible for Safety?

• Who is responsible for Security?

• Who is responsible for Vehicle Safety and Compliance?

• Who is responsible for Workers Comp?

• What is HR’s role?

• What Safety Manual, “Statements”, and Injury Illness and Prevention

Programs exist?

– When last reviewed and updated?

• How are managers trained on safety?

• How do you train new employees?

– Role of OJT

• How do you provide ongoing safety training?

DETERMINE YOUR OSHA

EXPOSURE AREAS


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• Warehouse

– Conveyors

– Docks, yard, wash areas

– PIT – forklifts and equipment

– Racks

– PPE/JSA

– Ergonomics

• Drivers, Merchandises, Representatives

– Ergonomics

– Workplace violence

• Multi-Employer Issues

– Temps and logistics providers

– Contractors onsite (e.g.; snow removal, roofs)

– Sharing equipment

DETERMINE YOUR OSHA

EXPOSURE AREAS


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• What is your role in safety compliance for temps and other non

employees onsite?

• What maintenance do your employees perform?

– Conveyors

– Dock plates

– Electrical

– PITS

– Vehicles

• Do you conduct regular “safety” inspections and audits?

– By whom?

• Do you conduct attitude surveys?

DETERMINE YOUR OSHA

EXPOSURE AREAS


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• When did you last review and update basic safety

policies and procedures?

• Powered Industrial Trucks (PIT)

– Every three years retraining

– How documented?

– Retraining after accident or violation?

– Daily inspections – how documented?

– Attachments, modification and plates

• Lock Out (LOTO)

– Where and when

– Annual “evaluation”

– Machine-specific procedures

DETERMINE YOUR OSHA

EXPOSURE AREAS


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• Executive role in safety

– Is safety really “number one?”

• How are supervisors trained and held to

consistency?

• Safety Incentive Programs

– Lagging vs. Leading Indicators

– OSHA’s position

– Safety, meetings, committees and self audits

SAFETY CULTURE


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• Job Safety Analysis (JSA)

– Do you have JSAs?

– Format, signature and date, Site-Specific

– PPE

– Safety Shoes (Cal-OSHA)

• Fire Prevention

– Fire extinguishers

– “Fight or Flight” procedure

– Signage Issues

– Blocked exits, extinguishers, and electric panels and

rooms

DETERMINE YOUR OSHA

EXPOSURE AREAS


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Imagine the possibilities if an employer doesn’t even know the

number of temps on site and has not focused on this issue or made

specific plans.

– Temps don't receive the same training as full time employees

performing the same duties;

– Aren’t included in Hearing Conservation or Respiratory Protection

Programs;

– Not included in safety meetings;

– No documentation of on-the-job training;

– Not aware of emergency response plans;

– Supervisor roles may be unclear;

COMMON TEMPORARY EMPLOYEE

PROBLEMS


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START WITH OSHA’S MULTIEMPLOYER

CITATION POLICY CPL 02-00-124

• Exposing employer

• Controlling employer

• Creating employer

• Correcting employer,

OR CITE THEM ALL ….


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Complaints

– relationships to problem employees

– whistleblowers/retaliation

OSHA’s new Injury Reporting Rules

Targeted Inspections

Ergonomic Emphasis Programs

Beverage Distribution Emphasis Programs

WHY OSHA COMES ON SITE


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EXPANDED OSHA REPORTING

REQUIREMENTS

Employers must now report the following to Fed-OSHA:

• All work-related fatalities and three or more hospitalizations within 8

hours (same as current requirement)

• All work-related in-patient hospitalizations of one or more

employees within 24 hours

• All work-related amputations within 24 hours

• All work-related losses of an eye within 24 hours


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REPORTING RULES

IN PATIENT HOSPITALIZATIONS:

In-patient hospitalization is defined as a formal admission to the in-patient service of a hospital or clinic for care or treatment.

1904.39(b)(10) Do I have to report an in-patient hospitalization that involves only observation or diagnostic testing?

–No, you do not have to report an in-patient hospitalization that involves only observation or diagnostic testing. You must only report to OSHA each inpatient hospitalization that involves care or treatment.

But, Get it in writing.


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1904.39(B)(11) HOW DOES OSHA DEFINE

“AMPUTATION"?

An amputation is the traumatic loss of a limb or other

external body part. Amputations include a part, such as a

limb or appendage that has been severed, cut off,

amputated (either completely or partially); fingertip

amputations with or without bone loss; medical amputations

resulting from irreparable damage; amputations of body

parts that have since been reattached.


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MOST COMMON OSHA

REPORTING ISSUES

• Is the single hospitalization for “observation?”

• What is an amputation?

• How do I handle heart attacks?

• What if the hospitalization occurs more than 24 hours after the

accident?

• When will OSHA come on site based on my report?

• Do I have to complete OSHA’s “Root Cause” Analysis Form?

• What if I’m late to report?


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• OSHA Inspections

– At each location, who is designated?

– Familiar with records sought?

– Audits and self inspections

– Limited “scope”

– Walk-around process

• Why take notes?

– Interview rights

– Fatalities and catastrophes

• Whistleblowers and Retaliation

HANDLING OSHA INSPECTIONS


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TAKE AWAYS

1. Make a list of the violations set out in the Anheuser-Busch citations and

similar items, and regularly audit for these areas … or even better, use

employees for regular self-audits and walk arounds. Not only will you

improve safety, but you’ll engage employees through such efforts and avoid

a plethora of employee issues. Engaged employees don’t sue you or seek

union representation.

2. Thoughtfully examine your merchandisers and drivers for potential

ergonomic concerns. Review 300 logs and first aid records in order to

determine potential areas to improve for merchandisers.

3. Do the same for warehouse employees. Because OSHA does not maintain

an Ergonomic standard, you, in essence create the “standard.” In other

words, OSHA will look to your hazard determinations and preventive efforts

as the industry standard for responding to these types of injury concerns.

4. Recognize that an increasingly savvy workforce knows how to harm

employers by complaining to OSHA or filing retaliation claims with OSHA or

the NLRB.

5. Determine if your Workplace Injury Rates place you in the OSHA Site-

Specific Selection Program, like the employer above. Many distributors

do not know that they fall on this programmed OSHA inspection list.

6. Ensure your sites know what to do if OSHA shows up?


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Section 5(a)(1) of the OSHAct allows OSHA to cite an

employer for a hazard that is “recognized by their industry,”even if, as in the case of Ergonomics, no OSHA Standard has

been enacted. OSHA must prove:

• whether there exists an ergonomic hazard,

• whether that hazard is recognized,

• whether the hazard is causing, or is likely to cause,

serious physical harm to employees,

• and whether a feasible means exists to reduce the

hazard.

HOW OSHA CITES WITHOUT AN ERGONOMIC

STANDARD


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It’s not enough to point to an ANSI, NFPA or UL consensus

standard, OSHA must prove that the industry accepts those

standards. Ergonomics is broad and sometimes mushy

area, so OSHA has approached one industry at a time,

beginning with: Meat Packing, Poultry, Nursing Homes,

Grocery Stores, Foundries, Retail Groceries, Shipyards, and

Beverage distribution.

HOW OSHA CITES WITHOUT AN ERGONOMIC

STANDARD


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2011 “Hazard Alert” Letters

2013 First Round of Inspections and Complaint Letters

2014 Second Round of Letters

2015 Inspections demanding Engineering Changes and

Adherence to NIOSH Lifting Equation

OSHA’S MULTIYEAR PROCESS OF

“CREATING” AN INDUSTRY STANDARD


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The purpose of this letter is to alert you to an important issue and provide

you with information that may be used to protect the safety and health of

your workers. OSHA inspection activity at some beverage distribution

operations initiated an analysis of the injury and illness rates for workers

involved in the beverage distribution industry.

These inspections along with the U.S. Bureau of Labor Statistics1 data

indicate these workers have a significantly higher rate of musculoskeletal

injuries than workers in most other industries. Typical beverage delivery

activities often involve forceful exertions, repetitive motions and awkward

postures for prolonged durations which can cause serious injuries of the

back, shoulders, arms, wrists, hands and legs.

OSHA’S 2011 ERGONOMIC HAZARD

ALERT TO BEVERAGE DISTRIBUTORS

https://www.osha.gov/dep/enforcement/beverage_ltr_08182011.html#footnote1


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A comprehensive ergonomic program to eliminate or reduce

musculoskeletal injuries should include the following elements:

1. Beverage delivery task analysis and customer site evaluations to

determine whether ergonomic hazards are present.

2. Worker and management site specific ergonomics training to ensure

workers and managers are aware of ergonomic hazards and control

methods.

3. Hazard control - reduce ergonomic hazards causing musculoskeletal

injuries using:

a. Engineering Controls:

i. Delivery vehicle pull-out step-on platforms, exterior grab

handles on all bays and drop down bay shelves.




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ii. Appropriate delivery equipment such as hand trucks, stair

climbers, conveyors and hoists and light weight plastic

pallets.

iii. Product modifications such as optimizing beverage

packaging and contents to reduce package weight and

improve grip.

b. Administrative controls:

i. Repair and maintenance programs for vehicles and

equipment utilized by delivery drivers.

c) Work organization controls:

i. Pre-planned unloading for the driver route, including route

specific loading diagrams to reduce multiple manual

product handling.




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4. Ergonomic program evaluation to determine if the

ongoing process is effective:

a. Evaluation and trending of the injury logs to

ensure reduction in the incidence and severity

rates of musculoskeletal disorders.

b. Worker feedback on the effectiveness of controls.




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OSHA recommends:

• Secure the services of a professional ergonomist with experience in the

warehousing industry to perform a full evaluation of your operation and make

specific recommendations based on your operations for improvements on

equipment, work practices, policy development and employee and supervisor

training to reduce the hazard to employees.

• Develop a written ergonomic policy or plan that addresses ergonomic concerns

identified and approach to mitigate those concerns. The written plan should

describe worksite analysis, medical management, training and education, and

hazard prevention control. The NIOSI-1 publication Elements of Ergonomic

programs can assist you in this.

2013 INITIAL OSHA ERGONOMICS

INSPECTION AND DIRECTIONS TO SAME EMPLOYERS


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• Develop and implement an effective monitoring and enforcement program

for supervisors to ensure employees appropriately use the lifting devices

available in their area to use for these purposes such as the fork lifts and

pallet jacks.

• Implement a training program that address the ergonomic hazards

associated with the job. Train employees on early recognition of

ergonomic injuries and illnesses and the importance of reporting them

promptly to minimize occurrence and severity of MSDs, the risks-

associated with material handling, and how to prevent the lifting injuries

from occurring.

• Educate the employees about the hazards of bending while moving heavy

loads, and ensure the use of proper lifting techniques.

• Consider the use of rotating load-leveling pallet loaders which are

calibrated to position the load at approximately waist height to eliminate

bending. Consider using empty pallets to create an elevated p platform to

serve as the base of the pallet to be loaded/unloaded to reduce deep

bending. Consider a height adjustable palletizer on the forks of the pallet

jack to keep product at waist height and when possible, utilize power

equipment rather than manual to reduce ergonomic stresses.

2013 INSPECTION AND

DIRECTIONS TO SAME EMPLOYERS


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Frequency of lift is a risk factor coupled with the position and

weight of load. Work rates that reportedly require employees

to unload, pick, and load orders rapidly while skipping

breaks to achieve their former rate of pay increases the risk

of MSDs and accidents. A. competent work-time consultant

can survey work tasks and recommend an appropriate work

rate and incorporate a work ramp-up (break-in) period for

new hires.

AN ESPECIALLY TROUBLING RECOMMENDATION


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To evaluate your progress in addressing these hazards, OSHA is seeking

information on the following:

•Provide a description of any engineering and administrative controls the

company may have implemented to address these hazards, including

adding mechanical devices, modification to employee workload, changes to

the way injuries are addressed, or any other changes which you feel may

have impacted the hazards identified in OSHA's initial letter. This includes

any controls recommended by OSHA during the inspection or other controls

implemented by your company.

•Provide a list and a description of any training provided to your employees

that addresses ergonomic hazards associated with their job and early

recognition of ergonomic injuries and illnesses.

•Provide a copy of OSHA's 300 and 300A forms, Log of Work-Related

injuries and Illnesses, beginning with the year of the original inspection

until the present.

OSHA 2014 FOLLOW UP ONE YEAR LATER AND

THEIR INFORMATION DEMAND


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• Provide an estimate of the number of hours worked or

number of full-time employees for each employee whose

job title(s) is (are) loader, selector, and unloader by year

beginning with the year of the original inspection.

• Inform OSHA if your company retained the services of a

professional ergonomist to perform a full evaluation of

your operation and make recommendations for

improvements on equipment, work practices, policy

development and employees training. If you did, provide a

copy of the evaluations and specific recommendations

made by the professional ergonomist.

OSHA 2014 INFORMATION REQUEST

(CONTINUED)


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To evaluate your progress in addressing the hazards identified, we are seeking the

following information:

• Any controls you may have implemented to address these hazards, including

adding mechanical devices, redesigning workstations, modifications to employee

workloads, changes to the way injuries are addressed, or any other changes

which you feel may have impacted the hazard identified in OSHA's letter. This

includes any controls recommended by OSHA or other controls implemented.

• A list of the types of training provided to your employees to address these

hazards.

• Copies of OSHA's Form 300, Log of Work-Related Injuries and Illnesses.

• An estimate of the number of hours worked or full-time employees for each

employee whose job titles are service representative and/or service

representative helpers, by year beginning with the year of the original inspection.

• An evaluation of the effectiveness of the controls.

2014 OSHA FOLLOW-UP LETTER FOCUSING ON

MERCHANDISERS AFTER FIRST INSPECTION


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• Employees working as service representatives and/or their helpers

were exposed to risk factors that are causing or likely to cause

Musculoskeletal Disorders (MSDs). These MSD risk factors include

actions such as, but not limited to, improper lifting techniques,

twisting and bending motions, forceful exertions, and repetitive

motions occurring for prolonged durations during the delivery of

beverages to the customers.

• Since no specific OSHA standards apply, and it is not considered

appropriate at this time to invoke Section 5(a)(1), the general duty

clause of the Occupational Safety and Health Act, no citations will be

issued for this hazard(s)pursuant to Section 21 of the Act which

authorizes OSHA to train employers and employees about workplace

hazards and appropriate abatement methods, it is recommended that

the following actions be taken to eliminate or reduce the hazard as

described above.

INITIAL 2013 INSPECTION CONCLUSIONS


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Conducting on-site evaluations to ensure that employees are

following the established procedures for the delivery of products to

the customers.

a) Providing employees with refresher ergonomics training at

least annually or more frequently when an employee's

evaluation shows that the employee is not following proper

procedures.

b) Review and update the ergonomics program to ensure that

the company is following current ergonomics guidelines and

the training is effective.

OSHA’S 2013 RECOMMENDATIONS (CONTINUED)


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• Been around since 1990;

• Requires trained economists;

• OSHA prescriptively applies the Equation;

• Claims no one should lift more than 51 pounds;

• Suspicious of Team Lifting.

OSHA’S USE OF 2015 NIOSH LIFTING EQUATION


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• Lift tables, etc. for separating pallet issues;

• Acute Care Hospital example – patient lifts in every

room

OSHA’S 2015 DEMAND FOR

ENGINEERING CHANGES


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THANK YOU!

Howard A. Mavity

[email protected]

Direct: 404.240.4204

Cell: 404-277-8596

This presentation does not constitute legal advice.

Every situation is different and may require consultation

with counsel.

mailto:[email protected]

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