occupational safety & health reporter€¦ · sonal jurisdiction in nicastro does not appear to...

H I G H L I G H T S

Enforcement of Whistleblower Rules Varies Among States, OSHA FindsFederal reviews of how state agencies investigate workers’ claims of retalia-tion for reporting safety or health violations reveal widespread problems, Oc-cupational Safety and Health Administration evaluations find. The problemsuncovered by the ‘‘federal annual monitoring evaluation’’ reports for each ofthe 25 states and two territories for fiscal 2011 include failure to interviewworkers who made the discrimination allegations or their supervisors, statelaws that could discourage complaints, incorrect classification of cases, andcase files in disarray. Page 815

Cancers Added to Conditions Covered by WTC Health ProgramTwenty-three types of cancer will be added to the list of illnesses covered bythe World Trade Center Health Program, John Howard, director of the Na-tional Institute for Occupational Safety and Health, announces the day beforethe 11th anniversary of the Sept. 11, 2001, terrorist attacks. ‘‘The original listof WTC-Related Health Conditions that was established by the James Zadroga9/11 Health and Compensation Act of 2010 did not include cancers, but al-lowed for the opportunity to add other health conditions over time,’’ Howardsays. Page 816

OSHA Awards 72 Groups $10.7 Million in Susan Harwood Training GrantsOSHA announces the award of $10.7 million in safety and health traininggrants to 72 nonprofit organizations. The grants, issued under the agency’sSusan Harwood Training Grant program, are intended to pay for safety andhealth training of workers and employers and for informing workers of theirrights under the OSH Act. The largest grant, for $643,110, goes to the NationalCouncil for Occupational Safety and Health. Page 816

Wal-Mart Warehouse Workers Strike to Protest Unsafe ConditionsSome three dozen warehouse workers go on strike to protest unsafe workingconditions at a major Wal-Mart warehouse in Jurupa Valley, Calif. The strikeis the culmination of a dispute that has been simmering throughout the sum-mer between the workers and their employers, NFI Industries, which ownsand operates the warehouse, and Warestaff LLC, a staffing agency. Page 817

Court Says Employee Can’t Link Firing to Anticipated Workers’ Comp FilingAn adjustor for an ammunition manufacturer, who was fired after not report-ing his absence for several weeks following an on-the-job injury, failed toshow that his anticipated filing for workers’ compensation benefits actuallycaused his termination, the U.S. Court of Appeals for the Seventh Circuitrules, affirming summary judgment for Olin Corp. on Jared Beatty’s retalia-tory discharge claim under Illinois law. The evidence shows that the labor re-lations manager who fired Beatty did so after learning that he had not beencalling in his absences, the court says. Page 826

B N A I N S I G H T S

JURISDICTION: The U.S. SupremeCourt’s divided opinion on per-sonal jurisdiction in Nicastrodoes not appear to offer the uni-form approach that many in thelegal community desired, sayattorneys David M. Ross andJoshua H. Joseph. The authorsanalyze lower court rulings inthe wake of Nicastro, and pre-dict that until the SupremeCourt issues a decision joined bya majority of justices, ‘‘the juris-dictional landscape in the UnitedStates will contain a sea ofchanging and likely inconsistentdecisions.’’ The court held thatan injured worker cannot suea British manufacturer in NewJersey courts because the com-pany lacked sufficient contactwith the state for state courtsjurisdiction. Page 830

W E B I N A R

WORKPLACE SAFETY: An Oct. 2Bloomberg BNA webinar, TenSteps to GHS and HazCom 2012Compliance, will review theGlobally Harmonized Systemand changes to OSHA’s newhazard communication standard,providing context for thechanges in the United States.Glenn Trout of MSDSonline willdiscuss the major changes, pro-vide strategies for meeting dead-lines, and address questionsrelated to GHS adoption. Infor-mation is available at http://www.bna.com/ten-steps-ghs-w12884911325/.

VOL. 42, NO. 36 PAGES 811-838 SEPTEMBER 13, 2012

COPYRIGHT � 2012 BY THE BUREAU OF NATIONAL AFFAIRS, INC. ISSN 0095-3237

Occupational Safety & Health Reporter™

This document is being provided for the use of LORI WOOD at BLOOMBERG/ B-LAW

http://www.bna.com/ten-steps-ghs-w12884911325/http://www.bna.com/ten-steps-ghs-w12884911325/http://www.bna.com/ten-steps-ghs-w12884911325/

H I G H L I G H T S

Continued from previous page

Navy Repair Center Accused of Exposing Workers to Heavy MetalsFor the fourth time in less than two years, a U.S. Navy repair center is facingallegations from OSHA that its employees have been exposed to dangerouswork conditions. The latest citations—for two willful and two seriousviolations—against Fleet Readiness Center Southwest in Coronado, Calif., de-tail inspections from January through July that found cadmium, lead, and be-ryllium dust throughout a huge repair hangar, including in a break room, anadministrative office fax machine, a wing repair shop, and a lunch room.Page 823

Court Revises Views on Transfer as Reasonable Accommodation Under ADAReversing circuit precedent, the U.S. Court of Appeals for the Seventh Circuitrules that the Americans with Disabilities Act requires employers to reassignemployees, unable to perform their current jobs because of disability, to va-cant positions for which they are qualified, absent a particularized showing ofundue hardship to the employer. The Seventh Circuit previously ruled that al-though the ADA mentions reassignment as a reasonable accommodation, theact does not require an employer to reassign a disabled worker to a vacant jobfor which there is a better candidate, provided it is the employer’s ‘‘consistentand honest policy’’ to select the best-qualified applicant. Page 828

Temp Workers Face More Hazards as Risky Jobs Are Outsourced: StudyThe economic recession has driven many workers to temporary staffing agen-cies, where one social scientist says they are more vulnerable to unsafe condi-tions than full-time employees. Job growth in the staffing industry increasedby some 45 percent between June 2009, when the recession technically ended,and July 2012, the Bureau of Labor Statistics says. A recent Canadian studyindicates that temporary workers are ‘‘falling through the cracks’’ when itcomes to on-the-job safety. Page 818

Challenges of Osteoarthritis Rise With Aging Workers, ObesityOsteoarthritis, a progressively more painful form of arthritis that afflicts theknee, hip, back, hand, and joints of millions of workers, will become muchmore common over the next decade, posing major challenges for employeesand employers, medical, disability, aging and work, and human resources ex-perts tell BNA. Osteoarthritis is certain to be a bigger workplace challenge inthe next decade for two reasons: the entire baby boom generation reachingtheir 50s, 60s, and 70s, and the enormous increase in obesity over the last 35years, Marcie Pitt-Catsouphes, director of the Sloan Center on Work and Ag-ing at Boston College, says. Page 822

Hazard Communication, Other Rules Impede Manufacturing, Study SaysFederal worker safety rules rank among the chief types of regulations imped-ing growth in the manufacturing sector, a new study alleges. ‘‘Although suchregulations are often cited as providing significant benefits to workers, em-ployers frequently assert that the same benefits could be achieved with lessburdensome forms of regulation,’’ the study, commissioned by the Manufac-turers Alliance for Productivity and Innovation, an industry group, says.Page 819

Montana Foundry Faces $104,000 Fine for Chemical, Noise HazardsA metal foundry in Butte, Mont., faces proposed fines of $104,000 after OSHAinspections reveal hazards related to chemical exposure and excessive noise,OSHA says. The citations against SeaCast Inc., headquartered in Marysville,Wash., include one alleged willful violation for not administering an effectivehearing conservation program by failing to provide adequate training forworkers and not having workers take baseline audiometric tests to measuretheir hearing. Page 824

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News / Page 815

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N E W S

CONTRACT WORKERS Temporary workers face morehazards as risky jobs are outsourced, study says ........ 818

EMERGENCY RESPONSE Cancers added to conditionscovered by World Trade Center health program ........ 816

ENFORCEMENT Alberta energy services companyfined after one worker killed, two injured in blast ...... 825

Missouri fireworks manufacturer cited for violationsafter blast injures workers ..................................... 824

Montana foundry faces $104,000 fine for chemicalexposure, noise hazards ........................................ 824

Navy repair center charged with exposing workersto cadmium, lead, beryllium ................................... 823

Ontario metal fabricator fined after worker killed....... 825

ERGONOMICS Workplace challenges of osteoarthritisrising with aging baby boomers, obesity ................... 822

GRANTS Seventy-two groups awarded $10.7 millionin Susan Harwood training grants ........................... 816

REGULATORY POLICY Challenges to agency scienceexpected to continue regardless of drive to upgrade ... 821

Chamber says OSHA rules play role in economicslump, poor job growth ......................................... 820

Hazard communication, other OSHA rules impedemanufacturing growth, study says ........................... 819

STATE PLANS Enforcement of whistleblowerrequirements varies among states, OSHA finds ......... 815

TESTING Advisers urge federal agencies to find wayto track animals used for regulatory tests ................. 819

CONTRACTOR LIABILITY Wal-Mart warehouseworkers strike to protest unsafe conditions ............... 817

L E G A L N E W S

DISABILITIES Seventh Circuit revises views ontransfer as reasonable accommodation under ADA .... 828

ENFORCEMENT DOL sues demolition firm for firingworker who reported improper handling of asbestos .. 827

JUDICIAL REVIEW SeaWorld appeals citations intrainer’s death ...................................................... 829

LABOR LAWS Court denies employer summaryjudgment despite government missing deadline ......... 827

RETALIATION Court says employee cannot link firingto anticipated workers’ comp filing .......................... 826

B N A I N S I G H T S

JURISDICTION Nicastro and its progeny: Did the U.S.Supreme Court usher in a new liability landscape 25years after Asahi? .................................................. 830

TA B L E O F C A S E S

Beatty v. Olin Corp. (7th Cir.).................................. 826

EEOC v. United Airlines Inc. (7th Cir.)...................... 828

Secretary of Labor v. Niles Family Dentistry Assocs.(N.D. Ohio) ......................................................... 827

Solis v. Champagne Demolition LLC (N.D.N.Y).......... 827

R E V I E W C O M M I S S I O N

FINAL ORDERS John R. Jurgenson Co., Secretary ofLabor v., 9/10/12 ................................................... 833

Know Thyself Contracting, Secretary of Labor v.,8/27/12 ................................................................ 833

NOTICES OF CONTEST Beck-Ford Construction LLC,Houston, Texas .................................................... 833

Center Enterprises Inc., Houston, Texas.................... 833

Compass Contracting LLC, Lake George, N.Y. ........... 833

Darella Electrical Inc., Kearny, N.J. .......................... 833

Escobar Roofing Inc., Dallas, Texas.......................... 833

Flatrolled Steel Inc., Houston, Texas ........................ 834

(Vol. 42, No. 36) 813

InThis Issue

OCCUPATIONAL SAFETY & HEALTH ISSN 0095-3237 BNA 9-13-12


R E V I E W C O M M I S S I O N

Continued from previous page

Great White Pressure Pumping, Garden City, Texas ... 834

LMC Industries, Arnold, Mo. ................................... 834

Midtown Bridge Associates LLC, Hillside, N.J. ........... 834

Miromar Lakes Beach Club, Miromar Lakes, Fla. ....... 834

Ratto Construction Inc., Newark, N.J. ....................... 834

Richway Transportation Services Inc., Houston,Texas ................................................................. 834

Ryan Contracting, Bismarck, N.D............................. 834

Simon & Schuster Inc., Riverside, N.J. ...................... 834

Cooper T. Smith Stevedoring Co., Houston, Texas...... 834

Tire Centers LLC, Decatur, Ala. ............................... 835

Tully/Posillico j/v, Brooklyn, N.Y. ............................. 835

Ward Steel Inc., Syracuse, N.Y. ............................... 835

Waste Management, Hopewell, N.J. ......................... 835

WireCo Worldgroup, Saint Joseph, Mo. .................... 835

Notice. This issue of Occupational Safety &Health Reporter consists of one section: Sec-tion 1, Current Report.

814 (Vol. 42, No. 36)



NewsState Plans

Enforcement of Whistleblower RequirementsVaries Among State Plan States, OSHA Finds

F ederal reviews of how state agencies investigateworkers’ claims of retaliation for reporting safetyor health violations revealed widespread problems,reports released by the Occupational Safety and HealthAdministration said.

The problems uncovered by the ‘‘federal annualmonitoring evaluation’’ (FAME) reports for each of the25 states and two territories for fiscal 2011 includedfailure to interview workers who made the discrimina-tion allegations or their supervisors, state laws thatcould discourage complaints, incorrect classification ofcases, and case files in disarray.

OSHA released its FAME reports in late August (42OSHR 780, 9/6/12).

While many states improved their enforcement ofwhistleblower regulations after OSHA issued similar re-ports for fiscal 2009 and 2010, federal OSHA foundproblems persisted in other states.

For example, in New York, the federal review foundproblems in that state’s handling of complaints made bypublic-sector workers.

‘‘[W]histleblower case files were difficult to followand lacked a final investigative report,’’ the report said.‘‘The reviewer was unable to determine in six of thenine case files reviewed (66%), what the investigatordid and the reasons for the investigative conclusions de-spite the fact that all [Public Employees OccupationalSafety and Health office] investigators had receivedOSHA Training Institute whistleblower training in2010.’’

New York’s Department of Labor did not respond toa request for comment.

California Failures. In California, the OSHA reportrecommended 23 changes to the whistleblower pro-gram, overseen by the California Division of Occupa-tional Safety and Health. Recordkeeping was so hap-hazard, the report said, that it was unclear to OSHA’sreview team how many complaints California closedout in fiscal 2011; figures ranged from 68 closed casesto 238. The OSHA team settled on 202 closed cases.

‘‘In general, the case file review revealed a generallack of interviews with complainants, respondent wit-nesses, and third-party non-management witnesses, in-cluding a lack of documentation for such interviews inthe case,’’ the OSHA report said.

The report added, ‘‘Of the 21 case files reviewed, theinvestigators failed to interview the complainant in 57%of the cases (12 of 21) and failed to interview the re-spondent witness(es) in 81% of the cases (17 of 21).’’

Cal/OSHA was also slow to complete investigations,the report said. According to agency records, investiga-tors took an average of 333 days to close out cases. Out

of 21 cases reviewed, only one was completed withinthe federal OSHA goal of completing a case within 90days.

A spokesman for Cal/OSHA told BNA Sept. 7 theagency could not answer questions about the findingsuntil it responds to federal OSHA.

State Law Problems. The reports for South Carolinaand Nevada found that state laws violated the require-ment that state-enforced protections be as least as ef-fective as federal regulations.

In South Carolina, a law signed by the governor inJune 2011 changed procedures for handling whistle-blower complaints made by private-sector employees.

Under the old law, the state’s Department of Labor,Licensing, and Regulation handled investigations and in‘‘meritorious cases’’ could file a civil court action seek-ing reinstatement, back pay, and other relief, the reportsaid.

With the changed law (Sec. 41-15-520), the stateagency referred the complaint to federal OSHA within15 days.

‘‘This [change] effectively deprives private-sector dis-crimination complainants of any remedy under theSouth Carolina State Plan,’’ the federal OSHA reviewsaid. ‘‘As a result of this legislative change, SC OSHAno longer meets federal requirements for continued ap-proval of its State Plan.’’

The report advised South Carolina to reinstate thestate’s authority.

A spokesman for the South Carolina agency toldBNA Sept. 10 in a written statement that the legislatureand governor approved revisions to the questioned stat-ute in the summer of 2012. The revised law still referscases to federal OSHA, but restores options to takecases to state court.

Nevada’s Notification Rule. For Nevada, federal OSHAfaulted the state’s requirement that workers planning tofile a whistleblower complaint, first notify their employ-ers of their intent. Nevada will not start an investigationuntil the employer is informed by the worker.

Federal procedures do not require employer notifica-tion until after OSHA opens an investigation, the reportsaid. In some cases, OSHA ‘‘administratively closes’’ acase before opening an investigation. Also, OSHA maydecide to inspect a workplace without telling the em-ployer in order to keep the employer from knowing thata complaint was filed.

The Nevada law (NRS 618.445(2)), reviewers said,‘‘may create a chilling effect’’ on a worker who wants tofile a whistleblower retaliation complaint because theworker must send or hand deliver the complaint di-rectly to his employer before NvOSHA opens an inves-tigation.

Federal OSHA advised Nevada to drop the notifica-tion requirement.

Steve Coffield, chief administrative officer forNvOSHA, told BNA Sept. 12 that the agency has recom-

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mended the change be made when the legislature meetsin February. However, before the proposal goes to law-makers, it still must be approved by the governor’s of-fice and the Nevada Division of Industrial Relations.

Meritorious Case Rates. When OSHA looked at theoutcomes of whistleblower complaints handled bystates, the agency found wide differences in the per-centages of cases in which investigators concluded thecomplaints had merit and deserved a full inquiry ac-cording to the ‘‘state activity mandated measures’’(SAMM) data with the FAME reports.

The percentage of California cases found to havemerit was 5.88 percent (4 of 68 complaints), among thelowest for the 27 agencies. However, OSHA officialsquestioned the accuracy of the figure because of thestate’s recordkeeping problems. Other states with lowrates were Virginia, 4.55 percent (1 of 22); North Caro-lina, 6.67 percent (5 of 75); Michigan, 7.4 percent (9 of126); and Oregon, 8.85 percent (10 of 113).

States at the high end included Utah, 50 percent (3 of6); Washington, 42.05 percent (37 of 88); Alaska, 41.67percent (5 of 12); South Carolina, 37.5 percent (3 of 8);and Indiana, 31.11 percent (14 of 45).

At federal OSHA, 23 percent of 6,591 cases from fis-cal 2009-2011 were determined to have merit.

OSHA Oversight Continues. Officials from federalOSHA declined to answer questions from BNA aboutthe reports, but did issue a statement on Sept. 10, say-ing the agency is continually talking with the states.

‘‘Working with the OSHA regions, states have devel-oped corrective action plans to address the problemsidentified in the FAME [reports] with expected actionsand time frames for completion,’’ the statement said.The completion and success of the corrective actionswill be assessed in the fiscal 2012 FAME reports.

BY BRUCE ROLFSEN

The whistleblower/discrimination reports for the agen-cies are part of the FAME reports available at http://www.osha.gov/dcsp/osp/efame/index.html.

Emergency Response

Cancers Added to Conditions CoveredBy World Trade Center Health Program

T wenty-three types of cancer will be added to the listof illnesses covered by the World Trade CenterHealth Program, John Howard, director of the Na-tional Institute for Occupational Safety and Health, an-nounced Sept. 10, the day before the 11th anniversaryof the Sept. 11, 2001, terrorist attacks.

Details about the cancers to be covered were pub-lished online as a final rule and report in the Sept. 12Federal Register (77 Fed. Reg. 56,138).

‘‘The publication of this final rule marks an importantstep in the effort to provide needed treatment and careto 9/11 responders and survivors through the WTCHealth Program,’’ Howard said in a written statement.‘‘The original list of WTC-Related Health Conditionsthat was established by the James Zadroga 9/11 Healthand Compensation Act of 2010 did not include cancers,but allowed for the opportunity to add other health con-ditions over time.’’

In addition to people involved with the World TradeCenter response, the program covers responders to theattack on the Pentagon and to the Flight 93 crash nearShanksville, Pa., as well as survivors.

In June, NIOSH announced it would consider addingcancers to the illnesses covered by the act and re-quested public comment (42 OSHR 531, 6/14/12).

Delegation Applauds Action. The change was wel-comed by New York City’s congressional delegation.

‘‘On the eve of the anniversary of the 9/11 attacks, to-day’s announcement is great news for the responders,survivors and their families, who have long known—and lived with—the reality that 9/11 dust and toxinscause cancer,’’ Reps. Peter T. King (R), Carolyn Malo-ney (D), and Jerrold Nadler (D) said in joint statement.‘‘We look forward to continuing to work closely withDr. Howard as he and his team finalize the cancer cov-erage certification process to accomplish this goal.’’

The rule becomes effective Oct. 12, 30 days after it ispublished in the Federal Register. At that time, peoplewho are already members of the WTC Health Programmay begin certifying their cancers as WTC-relatedhealth conditions by contacting their Clinical Center ofExcellence to begin the process, Howard said.

People who are not members, but who may be eli-gible, can apply by going to the program’s website.

The NIOSH report estimated cancer treatment costscould total $181 million by 2016, when the funding forthe program is set to end unless Congress approves anextension. To calculate costs for treating cancers,NIOSH assumed program members are 21 percentmore likely to have cancer than the general population,a percentage based on one study of cancer among fire-fighters who responded to the 9/11 attack.

According to the NIOSH, the WTC Health Programhas enrolled approximately 55,000 responders and ap-proximately 5,000 survivors. The total number ofpeople covered could grow to 80,000 responders and30,000 survivors.

BY BRUCE ROLFSEN

The Federal Register notice is available at http://www.ofr.gov/OFRUpload/OFRData/2012-22304_PI.pdf.

The WTC health program website is http://www.cdc.gov/wtc/.

Grants

Seventy-Two Groups Awarded $10.7 MillionIn OSHA’s Susan Harwood Training Grants

T he Occupational Safety and Health Administrationannounced Sept. 11 the award of $10.7 million insafety and health training grants to 72 nonprofitorganizations.

The grants, issued under the agency’s Susan Har-wood Training Grant program, are intended to pay forsafety and health training of workers and employersand for informing workers of their rights under theOSH Act.

The largest grant, for $643,110, went to the NationalCouncil for Occupational Safety and Health. OSHA saidthe group will use the money to offer training on work-ers’ rights under the OSH Act, including whistleblower

816 (Vol. 42, No. 36) NEWS



mailto:[email protected]://www.osha.gov/dcsp/osp/efame/index.htmlhttp://www.osha.gov/dcsp/osp/efame/index.htmlhttp://www.gpo.gov/fdsys/pkg/FR-2012-09-12/pdf/2012-22304.pdfhttp://www.cdc.gov/wtc/mailto:[email protected]://www.ofr.gov/OFRUpload/OFRData/2012-22304_PI.pdfhttp://www.ofr.gov/OFRUpload/OFRData/2012-22304_PI.pdfhttp://www.cdc.gov/wtc/http://www.cdc.gov/wtc/

rights, and will specifically target workers who do notspeak English through a network of 15 subgroupsthroughout the United States.

The second-largest grant, at $189,635, went to Farm-worker Justice, which will provide 16-hour ‘‘train-the-trainer’’ classes to site coordinators. The group will alsouse the funds to provide training on chemical safety,heat stress, and sanitation to farmworkers in Arizona,California, and Florida.

Grants were also awarded to the American Federa-tion of Teachers Educational Foundation, the AmericanRoad and Transportation Builders Association, theUnited Auto Workers, the Construction Safety Council,the New Jersey AFL-CIO, the Service Employers Inter-national Union, the United Food and CommercialWorkers, the Associated General Contractors ofAmerica, the National Roofing Contractors Association,and the Emergency Nurses Association.

Universities Also Awarded. Several universities also re-ceived grants, including the University of Alabama,Florida State College, Georgia Tech Applied ResearchCorporation, Idaho State University, Miami Dade Col-lege, Purdue University, University of California atBerkeley, University of California at Los Angeles, Kan-sas State University, Rutgers University, University ofMassachusetts, University of Texas, and University ofWisconsin.

‘‘The programs funded by these grants provide thou-sands of workers and employers with critical health andsafety training and education,’’ OSHA AdministratorDavid Michaels said in a Sept. 11 press release. ‘‘Theseprograms are unique in that they provide in-person,hands-on training that will have a long-lasting impacton improving workplace safety and health.’’

Labor Secretary Hilda Solis said in the same releasethat the Department of Labor ‘‘is committed to ensuringthat workers and employers are provided education andtraining on identifying and preventing serious work-place hazards. The grants awarded by the federal gov-ernment today will provide workers and employers insome of the most dangerous industries with importanttools to identify and eliminate such hazards.’’

Program’s Funding in Question? President Obama’s2013 budget asks for level funding for the Susan Har-wood grants in fiscal 2013, and in June a Senate panelapproved a budget that would increase the program’sfunding from $10.7 million to $11 million (41 OSHR341, 4/21/11; 42 OSHR 558, 6/21/12).

Shortly after the Senate bill was approved, however,a House committee passed its own budget that wouldeliminate the program (42 OSHR 647, 7/19/12).

During an April 2011 budget hearing, Michaels de-fended the program, calling it a compliance assistanceprogram (41 OSHR 341, 4/21/11).

‘‘We want these workers to be safe before we getthere,’’ Michaels said at the hearing. ‘‘I think it’s use-ful.’’

BY STEPHEN LEE

The list of Susan Harwood Capacity Building Devel-opmental Grant recipients is available at http://www.osha.gov/dte/sharwood/2012_grant_recipients.html.

The list of Susan Harwood Targeted Topic Grantrecipients is available at http://www.osha.gov/dte/

sharwood/2012_grant_targeted_recipients.html.

Contractor Liability

California Wal-Mart Warehouse WorkersGo on Strike to Protest Unsafe Conditions

S ome three dozen warehouse workers went onstrike Sept. 12 to protest unsafe working condi-tions at a major Wal-Mart warehouse in JurupaValley, Calif.

The strike is the culmination of a dispute that hasbeen simmering throughout the summer between theworkers and their employers, NFI Industries, whichowns and operates the warehouse, and Warestaff LLC,a staffing agency (42 OSHR 627, 7/12/12).

Wal-Mart contracts with NFI and Warestaff, and doesnot employ the workers directly.

Elizabeth Brennan, a spokeswoman for Change toWin, which is helping the workers coordinate their ef-forts, told BNA Sept. 12 that the workers are demand-ing fans in the warehouse to reduce the heat, adequateaccess to clean drinking water, an end to retaliation,and properly maintained equipment.

‘‘These workers feel like they’ve exhausted all op-tions to improve conditions at this warehouse,’’ Bren-nan said, pointing to a complaint filed with the Califor-nia Division of Occupational Safety and Health (Cal/OSHA) in July, a written petition sent to Wal-Mart chiefexecutive Mike Duke in September, and some half-dozen federal charges filed with the National Labor Re-lations Board throughout the summer about retaliation,surveillance of activist workers, and other forms of in-timidation (42 OSHR 785, 9/6/12).

Investigation Underway. Cal/OSHA has launched an in-vestigation, but ‘‘that’s not a quick process, and some ofthe working conditions are more urgent,’’ Brennan said.Wal-Mart has not responded to the petition.

Brennan also said that, although the strike involvesonly three dozen workers, that number is neverthelesssignificant because they are not unionized. The ranks ofstriking workers is also expected to swell in the follow-ing days, Brennan said.

‘‘After five years of lifting heavy boxes every day inthe warehouse, my body aches,’’ Marta Medina, a ware-house worker in San Bernardino, Calif., said in a Sept.12 press release announcing the strike. ‘‘I am 31. Walk-ing is difficult, lifting my son is nearly impossible, and Ifrequently have very painful back spasms.’’

Medina was also hired by Warestaff and worked at aWal-Mart facility, but she is not involved in the strike.She left her job after she seriously hurt her back andhas not returned, Brennan said.

‘‘I had to fight for medical attention,’’ Medina wroteof her post-injury experience. ‘‘The managers of thewarehouse didn’t care about my health or safety. Theytried to prevent me from seeing a doctor. I fought and Iwon medical care, but I have seen a lot of my cowork-ers fired for similar injuries. They leave the warehousehurt, with no job and no health care.’’

Employers Defend Safety Performance. In July, LanaMacGilvray, an NFI spokeswoman, told BNA that thecompany was not aware of any safety concerns at the

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warehouse. NFI has instituted several controls to pro-tect workers, MacGilvray said (42 OSHR 672, 7/26/12).

Also in July, Giuseppe Ingrao, a Warestaff manager,said the company is a conscientious employer, provid-ing water to its warehouse workers, requiring workerswho use forklifts to be certified, regulating the pace ofwork to minimize the chance of repetitive strain inju-ries, and ensuring clients follow safety procedures.

Wal-Mart has a written policy forbidding it from do-ing business with contractors that do not remediateknown safety hazards. Dan Fogelman, a companyspokesman, told BNA July 11 that the company had be-gun an internal review of its contractors’ safety stan-dards.

BY STEPHEN LEE

Contract Workers

Temporary Employees Face More HazardsAs Risky Jobs Are Outsourced, Study Says

T he economic recession has driven many workers totemporary staffing agencies, where one social sci-entist says they are more vulnerable to unsafe con-ditions than full-time employees.

Job growth in the staffing industry increased by some45 percent between June 2009, when the recession tech-nically ended, and July 2012, the Bureau of Labor Sta-tistics reported in August.

A recent Canadian study indicates that temporaryworkers are ‘‘falling through the cracks’’ when it comesto on-the-job safety. One cause may be experience rat-ing rules, which set workers’ compensation insurancepremiums based on an employer’s history of claims,creating ‘‘a market for outsourcing risky jobs to tempo-rary work agencies, which cannot properly manage in-jury prevention,’’ according to the report, published inthe academic journal Policy and Practice in Health andSafety.

The experience rating system ‘‘puts a price on work-place health, making it a market commodity,’’ wrote El-len MacEachen, an assistant professor at the Universityof Toronto and the paper’s lead author.

System Provides Perverse Incentives. In so doing, theexperience rating system encourages employers tolower their workers’ compensation costs by outsourc-ing their riskiest work, since it is the staffing agencythat bears the legal burden for the workers’ safety,MacEachen wrote. Yet staffing agencies are also lessable to manage safety in the workplace than the clientemployers, according to MacEachen.

The system ‘‘is not set up for this three-way relation-ship,’’ MacEachen told BNA Aug. 17.

MacEachen noted that her report, which examined64 low-wage agency workers, temporary work agen-cies, client employers, and ‘‘key informants’’ between2009 and 2011, focused only on Canadian law. But thesame legal provisions apply generally in the UnitedStates, she said.

Making matters worse, many jurisdictions struggle toenforce safety regulations because their inspectors of-ten do not know where the temporary workers are.

‘‘Finding the clients’ employers is tricky,’’MacEachen said. ‘‘They’re in these warehouses in the

middle of nowhere. You don’t know who’s working ontheir premises. Unless regulators can gain access to thefiles of temp agencies, they are invisible to anyone.’’

Temporary Workers Vulnerable, Researcher Says. Fur-ther, many temporary workers are in that sector of thelabor market involuntarily, according to MacEachen,belying the conventional notion that staffing agenciesare a boon to workers because of the freedom and flex-ibility they offer.

‘‘We’ve found people who just have a hard time main-taining steady employment in general,’’ MacEachensaid. ‘‘We found a lot of recent immigrants who werehaving a hard time getting hired for regular work. Wefound some people who just had a hard time maintain-ing steady employment in general.’’

In MacEachen’s view, the experience rating rulesshould be applied to the client employer as a way ofproviding incentive to the party that actually controlsthe working conditions to prevent workers from gettinginjured.

Because the study was qualitative, it did not yield anyspecific data on injury or illness rates among temporaryworkers, MacEachen said.

However, she also found that in U.S. constructionand manufacturing sectors, temporary workers aretwice as likely to suffer injuries, and in the Netherlandsand Germany, they have accounted for 13 percent ofworkplace accidents, even though they represent only 3percent of the workforce.

Staffing Association Disputes Claims. Edward Lenz, se-nior vice president of legal and public affairs at theAmerican Staffing Association, disputed MacEachen’sclaims in an Aug. 21 interview with BNA.

To Lenz, temporary workers actually profit from ef-fectively having two employers to protect their inter-ests.

If a staffing agency fails to discharge its legal obliga-tions to a worker, the client employer will ‘‘often haveliability, depending on its own culpability,’’ Lenz said.

Client employers ‘‘are primarily responsible formaintaining a safe workplace no matter who’s there,’’Lenz said. ‘‘That’s imposed by federal law. So there’s awhole panoply of federal, state, and in some cases localrules that govern employment relationships, and underall of those schemes, both the staffing firm and the cli-ent have responsibilities often. If it’s not one, then it’sthe other.’’

When asked if he meant temporary work is actuallysafer than full-time work, Lenz said, ‘‘You could makethat argument. But you could also say that if you havetwo quarterbacks, you have no quarterback, becausesomeone has to take charge.’’

Nevertheless, Lenz disputed MacEachen’s contentionthat employers outsource their most dangerous jobs tostaffing firms, saying staffing firms are generally hesi-tant to take on highly risky work.

‘‘All of this is based on anecdotal evidence, and itstrikes me more as a theory than anything that has beenempirically demonstrated,’’ Lenz said.

BY STEPHEN LEE

Ellen MacEachen’s paper, ‘‘Workers’ CompensationExperience-Rating Rules and the Danger to Workers’Safety in the Temporary Work Agency Sector,’’ can bepurchased at http://www.ingentaconnect.com/content/iosh/pphs/2012/00000010/00000001/art00006.

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Testing

Advisers Urge Federal Agencies to Find WayTo Track Animals Used for Regulatory Tests

F ederal agencies must find a way to track the num-ber of animals being used to test certain medicinesand chemicals to determine whether efforts to re-duce that number are succeeding, federal advisers toldan interagency committee.

Also during the meeting, held Sept. 5-6, the commit-tee approved a test developed by the National Institutefor Occupational Safety and Health that could help pre-vent skin allergy problems among workers.

‘‘There has to be a metric’’ regarding animal testing,Steven Niemi, chairman of the Scientific Advisory Com-mittee on Alternative Toxicological Methods, told theInteragency Coordinating Committee on the Validationof Alternative Methods (ICCVAM) and the NationalToxicology Program’s Interagency Center for theEvaluation of Alternative Toxicological Methods(NICEATM) during a meeting of the advisory commit-tee.

‘‘Let’s start counting as soon as possible,’’ Niemi,who also is the director of animal welfare assurance atMassachusetts General Hospital, said. He challengedICCVAM and NICEATM to find a way to measure atleast some animal use within a year.

The advisory committee met to advise ICCVAM andNICEATM, which work to reduce, refine, or replace theuse of animals in safety and toxicity tests conducted forfederal agencies. Such tests generally are referred to asalternative tests.

Work on New Dermal Test Approved. During a discus-sion of new work, the advisers voted unanimously tosupport an ICCVAM and NICEATM review of a test thatwould not use any animals to identify chemicals thatcould cause allergic skin responses.

NIOSH developed the test and proposed thatNICEATM and ICCVAM review it because skin aller-gies are a significant problem for workers, ICCVAMVice Chair Joanna Matheson told the advisory commit-tee. Matheson works for the Consumer Product SafetyCommission.

The test, called the electrophilic allergen screen as-say, identifies chemicals that bind with proteins, a nec-essary biological step that leads to allergies, Mathesonsaid.

The test is easy to perform, produces results withintwo hours or less, and is inexpensive, she said.

Matheson said she hopes it eventually could be usedto detect chemicals that cause allergies when inhaled.

Once test methods are approved for review,NICEATM and ICCVAM work to determine whether thetest methods provide scientifically valid informationneeded by regulators and whether they can be used bymultiple laboratories.

Challenge in Tracking Animal Use. Regarding animaltesting, ICCVAM Chairwoman Jodie Kulpa-Eddy, whoworks for the Agriculture Department, said that al-though USDA receives animal-use statistics from insti-tutions that conduct tests, the information it receiveswould not specifically address the question the commit-tee wants answered.

For example, the number of animals used in a givenyear might drop because the work to develop a new vac-cine has been completed, which would not reflectchanges in animal use, she said.

Nonetheless, advisory committee members StevenHansen, chief operating officer for the American Soci-ety for the Prevention of Cruelty to Animals, and Ri-cardo Ochoa, president of Pre-Clinical Safety Inc., saidICCVAM must find a way to measure whether animaluse is decreasing.

Hansen suggested ICCVAM and NICEATM set a goalof reducing animal use by 10 percent over the next fiveyears and include that in a five-year plan they intend tocomplete by the end of 2012.

Strides Made Since 1999. William Stokes,NICEATM’s director, briefed the advisory committee onprogress ICCVAM and the center have made in recentyears.

Since 1999, federal agencies have adopted 58 alterna-tive tests, Stokes said.

Those tests primarily target the acute ‘‘six-pack’’ ofacute oral toxicity, acute dermal toxicity, acute inhala-tion toxicity, skin irritation, eye irritation, and dermalsensitization, Stokes said.

Those tests account for more than 50 percent of theanimals used in toxicity tests and the majority of painthey experience in tests conducted for requirements ofthe Environmental Protection Agency, Consumer Prod-uct Safety Commission, Transportation Department,and Occupational Safety and Health Administration, hesaid.

The new or revised tests require 50 percent to 60 per-cent fewer animals, Stokes said. Two of the six tests canbe done without animals in some cases, and three of thesix either no longer involve pain or distress or signifi-cantly reduce pain, he said.

In recent years, ICCVAM and NICEATM also havebegun to work on tests for vaccines, blood, tissues, andother ‘‘biologics,’’ because they account for two-thirdsof the animals used in regulatory testing, Stokes said.

Advisory committee members including Tracie Bun-ton, founder of the toxicology consulting firm EicarteLLC, encouraged NICEATM to continue its efforts to letscientists, laboratories, and chemical and pharmaceuti-cal companies know from which new types of toxicitytests federal agencies will accept data.

‘‘We are paying attention to what is going to be ac-cepted,’’ Bunton said.

BY PAT RIZZUTO

Background materials for the advisory committee’smeeting are available at http://ntp.niehs.nih.gov/?objectid=26F6530D-BA27-9B29-FAE1657CB6DB907D.

Regulatory Policy

Hazard Communication, Other OSHA RulesImpede Manufacturing Growth, Study Says

F ederal worker safety rules rank among the chieftypes of regulations impeding growth in the manu-facturing sector, according to a new study byNERA Economic Consulting.

‘‘Although such regulations are often cited as provid-ing significant benefits to workers, employers fre-

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quently assert that the same benefits could be achievedwith less burdensome forms of regulation,’’ the Aug. 21study said.

The 109-page study was commissioned by the Manu-facturers Alliance for Productivity and Innovation, anindustry group.

In August, the manufacturing sector shed 15,000jobs, the Alliance for American Manufacturing saidSept. 7.

The NERA report also found that ‘‘[e]mployers arefrequently cited for OSHA violations, suggesting thatthe rules are not easy to comply with and possibly fi-nancially burdensome.’’

Haz Comm Rule ‘Potentially Burdensome.’ In particular,OSHA’s hazard communication rule is among recentmajor rules that tighten worker safety standards, the re-port found.

OSHA’s March 26 final rule aligns the agency’s haz-ard communication standard with the U.N. GloballyHarmonized System for Classification and Labelling ofChemicals, modifying criteria for classifying physicaland health hazards, adopting standardized labeling re-quirements, and mandating standardized informationon safety data sheets (77 Fed. Reg. 17,573; 42 OSHR265, 3/22/12).

The report also pointed to ‘‘several recent rules (bothmajor and non-major) dealing with respiratory protec-tion’’ as regulations affecting manufacturing employ-ers.

Costs of Compliance Rising. From 1998 through theend of 2011, the cost of complying with major regula-tions in the manufacturing sector grew by an annual-ized rate of 7.6 percent, the study found. Gross domes-tic product grew by only 2.2 percent per year during thesame period, and physical manufacturing output ex-panded by only 0.4 percent.

Moreover, major regulations could cause manufac-turing output to shrink by 2.3 percent to 6 percent overthe next decade, the report warned.

NERA also noted, however, that its report intention-ally did not factor in the benefits of regulations, butonly their costs. Many pro-regulatory analysts claimthat business representatives consistently fail to con-sider the benefits of rules in their evaluations.

According to NERA, its findings ‘‘can be used to helpidentify the cost of regulations, areas where regulatoryreview may be best focused, and the impacts of allow-ing regulations to expand at their current rate.’’

The Environmental Protection Agency regulationsimpose the largest burdens on the manufacturing sec-tor, with 972 regulations; from 1993 through 2011, EPArules imposed costs totaling $117 billion on the manu-facturing sector, NERA found.

BY STEPHEN LEE

The text of NERA Economic Consulting’s study, ‘‘Mac-roeconomic Impacts of Federal Regulation of theManufacturing Sector,’’ is available at http://www.cq.com/pdf/4143034.

Regulatory Policy

Chamber Says OSHA Rules Play Key RoleIn Ongoing Economic Slump, Poor Job Growth

W orker safety regulations are playing a key role inthe U.S. Chamber of Commerce’s narrativeabout why the economy is still mired in a deepslump, according to two chamber officials who spoke ata Sept. 10 briefing.

On Sept. 7, the Bureau of Labor Statistics announcedthat the U.S. economy added just 96,000 jobs in August.Martin Regalia, the chamber’s chief economist, saidduring the briefing that that pace is scarcely enough toaccommodate new entrants into the workforce.

Among the factors keeping the economy from re-bounding are Occupational Safety and Health Adminis-tration regulations, said Randel Johnson, senior vicepresident of the chamber’s labor, immigration, and em-ployee benefits division.

In particular, a chamber fact sheet from the briefinglisted four OSHA activities as ‘‘substantive changeswithout accountability’’:

s increased ergonomics enforcement under the OSHAct’s general duty clause;

s the agency’s site-specific targeting directive, thatexpands the program to include employers with as fewas 20 workers (41 OSHR 790, 9/15/11);

s a March 12 memo to field staff on incentive pro-grams as potential violations of whistleblower protec-tions (42 OSHR 266, 3/22/12); and

s various administrative changes to increase fines,such as a change to the Severe Violator EnforcementProgram that separates multiple violations at the samejob site and treats them as separate violations.

169,301 Pages of Regulations. Further, the sheernumber of regulations is keeping the economy frombouncing back, Johnson said.

Over the past 10 years, federal agencies have issuedmore than 38,000 new rules, Johnson said, and theCode of Federal Regulations now spans 169,301 pages.

‘‘People lose track of what employers really mustface at the same time they’re trying to run a business,’’Johnson said.

To illustrate his point, Johnson displayed an enlargedpage of regulatory text under the Occupational Safetyand Health Act.

He also noted that, according to a 2010 study byeconomists Nicole Crain and Mark Crain, commis-sioned by the Small Business Administration’s Office ofAdvocacy, the total cost for all regulations in 2008 was$1.7 trillion.

Many academics, as well as the Congressional Re-search Service, have disputed that finding, pointing outthat the study did not take into account the benefits ofregulations and generally used only agencies’ highestcost estimates (41 OSHR 371, 4/28/11).

But a Sept. 7 fact sheet circulated by the chamber ar-gued that, ‘‘[e]ven if [the study] is off the mark by half(which is doubtful), the annual cost of regulationswould still be significant and, therefore, worthy of care-ful attention to eliminate waste and excessive burdens.’’

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Enforcement Inhibiting Job Growth. The Obama admin-istration’s emphasis on strong enforcement is also put-ting a brake on job growth, Johnson said.

‘‘What we’re seeing under this administration isoverly aggressive enforcement strategy that’s not nec-essarily justified,’’ Johnson said. ‘‘What’s the mindset ofpeople bringing these kinds of cases against employerswho are simply trying to survive and create jobs fortheir employees, basically create a little wealth for ev-erybody to spread around?’’

In 2011, the chamber circulated a policy positionbooklet listing three OSHA initiatives—its planned in-jury and illness prevention plan regulation, musculosk-eletal disorder recordkeeping proposal, and noise rein-terpretation proposal—as parts of ‘‘an important pro-union shift in labor policy’’ carried out by the Obamaadministration.

OSHA eventually withdrew both the noise and re-cordkeeping proposals (41 OSHR 47, 1/20/11; 41 OSHR67, 1/27/11).

Job Growth ‘Very Subpar.’ Also during the briefing, Re-galia said job growth under President Obama has been‘‘very, very subpar,’’ at a rate of between 2.2 percentand 2.3 percent.

Regalia predicted that job growth over the next twoyears will be ‘‘fairly moribund, fairly pedestrian.’’

BLS reported Sept. 7 that unemployment had fallento 8.1 percent. But that figure is unrealistically optimis-tic, because it includes the millions of workers whohave stopped looking for work, Regalia said.

BY STEPHEN LEE

Regulatory Policy

Challenges to Agency Science ExpectedTo Continue Regardless of Drive to Upgrade

T he application of science to regulations and otherfederal agency decisions will continue to face chal-lenges from the regulated community, even ifagencies broadly adopt recommendations by the Ad-ministrative Conference of the United States to upgradetheir science, participants said Sept. 10 at a NationalAcademies workshop.

The agencies, meanwhile, may not have the re-sources they would need to implement the best-practicerecommendations, some participants said.

Federal agencies can learn a lot from each other onhow they use science, David Michaels, assistant secre-tary of labor for occupational safety and health, toldworkshop participants. He cited the Energy Depart-ment’s policy on radiation protection as an approachother agencies could adopt.

Some in the regulated community will inevitably op-pose federal policies that are based on science, ‘‘so theygo after the science,’’ Michaels said. He pointed to to-bacco companies challenging science that showedsmoking could cause lung cancer as an example of theindustry tactic, adding, ‘‘if they have enough money,they will go on [fighting the science] for decades.’’

Michaels was among the speakers the National Acad-emies’ Committee on Science, Technology, and Law in-vited to speak at the workshop, which was held to dis-cuss recommendations the Administrative Conference

of the United States plans to make on improving federalagencies’ use of science.

The administrative conference is an independent fed-eral agency charged with offering recommendations tothe White House to improve the administrative process.One of its current projects involves exploring agencies’use of science.

Critics complain either that agencies overregulate be-cause they give insufficient attention to sound science,or underregulate because they permit science to betrumped by political considerations, the conferencesaid on its website describing the project.

The Down Side of Transparency. Michaels noted a rec-ommendation in a draft report distributed at the meet-ing that agencies make the scientific record upon whichtheir decisions are based transparent, so that interestedparties can understand and weigh in on critical ques-tions. The report, Recommendations on the Use of Sci-ence in the Administrative Process, was prepared byWendy Wagner, a professor at Case Law School.

OSHA’s rulemaking process, which involves publichearings in which ‘‘anybody can examine anyone,’’ isvery open, Michaels said.

The down side of such a thorough process is that ittakes eight or more years to regulate a single chemical,he said. OSHA has issued workplace safety standardsfor only 30 chemicals, Michaels said. ‘‘Workers are pay-ing for it with their health.’’

Diverse parties are never going to agree on what spe-cific exposure level may prevent adverse effects, Mi-chaels said. ‘‘That’s a policy decision, and the scienceoften says to go to zero [exposure], and you can’t dothat.’’

Instead, it might be prudent to adopt an approach tochemicals management that is drawn from the experi-ence of the Department of Energy, which aims to keepexposures to radiation ‘‘as low as reasonably achiev-able,’’ he said.

Recommendations Expected Next Year. The committeedoes not have recommendations yet, but held the work-shop to generate ideas. The conference expects to de-cide what recommendations it will make by June 2013,ACUS Chairman Paul Verkuil told BNA during themeeting.

To spur its discussions, the conference commissionedWagner’s report.

She analyzed the science used by the EnvironmentalProtection Agency to set national ambient air qualitystandards, to determine the health hazards of chemicalsand the doses that could trigger those hazards, and toregister pesticides. She also examined endangered spe-cies decisions made by the U.S. Fish and Wildlife Ser-vice and decisions the Nuclear Regulatory Commissionmakes, particularly with respect to how nuclear materi-als and waste are managed.

Under the Endangered Species Act, the Fish andWildlife Service has one year to review all available sci-ence and make a decision as to whether a speciesshould be protected or not, Wagner said. Yet the agencyhas only a few staff and about $250,000 to $300,000 tomake a decision, she said, adding ‘‘that’s not enough todo a good job.’’

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Support for ‘Stopping Rules.’ The one-year time limitthe law gives the Fish and Wildlife Service is, however,an example of a ‘‘stopping rule’’ that clearly states howlong an agency has to complete scientific analyses.

Having stopping rules—whether required by Con-gress as in this case, or through internal policies—maybe useful, said Wagner.

Several speakers, including Lynn Goldman, dean ofthe George Washington School of Public Health andHealth Services, said they agreed that stopping rulescould have merit. Goldman served as assistant adminis-trator for toxic substances at EPA from 1993 through1998.

Goldman said agencies should follow other recom-mendations in Wagner’s report, such as providing a listof the scientific studies and analyses they used to makea decision and allowing agency scientists to have theirnames cited as the authors of scientific analyses usedby their own or other agencies.

It also is useful for agencies to have established pro-cedures in place for how they conduct risk or otheranalyses and to increase the amount of peer review of adocument if it departs from those established practices,Goldman said. EPA has many guidance documents forits risk assessors.

OMB Review. Much of the discussion at the workshop,however, veered away from best practices at federalagencies and focused instead on the White House Of-fice of Management and Budget’s review of agency pro-posed and final rules.

Wagner described OMB’s review as a part of the rule-making process where ‘‘the needle is pulled off the re-cord,’’ meaning the public does not know the detailsabout any objections OMB raises to a decision anagency has proposed to make.

Susan Dudley, a member of the Administrative Con-ference committee that is preparing to make recom-mendations, said the recommendations are not the ap-propriate place to weigh in on how the president over-sees his staff.

BY PAT RIZZUTO

Wagner’s report and other information about theAdministrative Conference project on the use of sci-ence in the administrative process is available athttp://tinyurl.com/94fynar.

Ergonomics

Workplace Challenges of OsteoarthritisRising With Aging Baby Boomers, Obesity

O steoarthritis, a progressively more painful form ofarthritis that afflicts the knee, hip, back, hand, andjoints of millions of workers, will become muchmore common over the next decade, posing major chal-lenges for employees and employers.

That was the unanimous opinion of medical, disabil-ity, aging and work, and human resources experts inter-viewed in August by BNA.

In 2010, some 27 million Americans had the currentlyincurable degenerative condition, roughly half underage 65, according to the National Institutes of Health.NIH projects that in 2030, osteoarthritis will affect 60million Americans.

Osteoarthritis is the most common form of arthritis.According to the Arthritis Foundation, beyond a verysmall number of children, teens, and young adults withthe condition, it has historically begun to affect peoplewhen they reach 45 to 55 years of age.

Osteoarthritis is certain to be a bigger workplacechallenge in the next decade for two reasons: the entirebaby boom generation reaching their 50s, 60s, and 70s,and the enormous increase in obesity over the last 35years, Marcie Pitt-Catsouphes, director of the SloanCenter on Work and Aging at Boston College, told BNA.

New Age and Weight Factors. By 2020, 37 percent ofthe labor force will be age 55 or older, up from 25 per-cent in 2010, according to projections published in theJanuary 2012 issue of the Bureau of Labor Statistics’Monthly Labor Review. One out of every 10 workerswill be 65 or older in 2020, up from one in 17 today, ac-cording to the article by BLS economist Mitra Toossi.

In addition, obesity is a major risk factor for osteoar-thritis, noted Glenn Pransky, director of Liberty Mutu-al’s Center for Disability Research, part of the workers’compensation insurer’s Research Institute for Safety.Every pound of additional weight effectively puts fourpounds of additional weight on peoples’ knees and hips,increasing the risk of osteoarthritis, Pransky said.

The adult obesity rate has rocketed up from 15 per-cent in 1975 to 36 percent in 2010, according to the Cen-ters for Disease Control and Prevention.

With the combined factors of age and weight, thelooming workplace impact is hard to overstate, Pranskywarned.

Proactive and Responsive Employer Actions. Employerscan do a number of things to help reduce the incidenceof osteoarthritis and help affected employees remainproductive.

Russell D. Robbins, senior clinical consultant forMercer Health and Benefits, suggested that good em-ployer practices include:

s ensuring that jobs and work tasks are designed er-gonomically;

s encouraging good fitness and weight manage-ment;

s working with arthritic employees to modify theirjobs to accommodate their pain;

s offering prescription benefit plans covering drugsthat relieve the progressively worsening pain of osteo-arthritis; and

s using technologies that reduce or relieve employ-ees of the need to use arthritic joints.

Advances in pain medication have made a dramaticdifference for many people with osteoarthritis in termsof their ability to continue to work, Pitt-Catsouphessaid.

On technology, Robbins noted that speech recogni-tion software can sharply reduce the number of key-strokes and mouse clicks needed to create documentsor manage computer applications.

Scissor lifts that make it very easy to elevate objectsfrom floor to waist height are very helpful to employeesworking in store room, warehouse, and other commer-cial and industrial jobs, Pransky said. He added thatscissor lifts are very cost-effective, with prices begin-ning at well under $1,000.

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Accommodations Not Costly. Accommodation is usu-ally very inexpensive compared with long-term disabil-ity costs and medical costs, Pransky said.

To keep them connected to employment, employeessuffering a period of unusually high osteoarthritis painshould be offered a temporary, very light-duty jobrather than ordered to recover at home, Pransky sug-gested. Each additional day a disabled worker is offwork increases the risk that he or she will not return towork, Pransky said.

‘‘There is a straight line between the number of work-days lost and total medical costs,’’ he asserted.

Also effective, Pitt-Catsouphes said, are having oneor more co-workers handle ancillary job tasks that aredifficult for an employee with advancing arthritis, ormoving an affected employee to a job that is easier forhim or her to perform. She also suggested part-timework and/or telecommuting.

Employee-Initiated Discussions. When employees suf-fer work performance challenges related to osteoarthri-tis, self-disclosure of their condition to managementgreatly simplifies initiating employee-employer discus-sions that can lead to successful job accommodations,observed Atlanta-based human resources consultantCarol Hacker.

Pransky said that in most cases, employees will self-report to their employer when arthritis is interferingwith their ability to do a job. The likelihood of self-reporting is highest in workplaces in which employeesare confident their disclosure will not be used againstthem, Pransky added.

In such environments, managers can ask individualemployees, ‘‘how’s this job working out for you?’’ andreceive an open and honest reply, Pransky said. Headded that in a trusting work culture, employees withosteoarthritis can remain productive for many years,even decades, provided they practice good self-care.

Employer-Initiated Discussions. An employer mightfeel obligated to intercede with an employee who ap-pears to be in pain and struggling to accomplish whathad been a regular work task.

However, employers seeking to help such an em-ployee need to proceed with care to avoid possible li-ability under the Americans With Disabilities Act, notedWashington, D.C.-based attorney Kenneth M. Willner, apartner in the employment law section of Paul, Hast-ings, Janofsky & Walker LLP.

A manager who suggested to an employee that arthri-tis was slowing his or her typing down, prior to the em-ployee disclosing it, would open the door to an ADAlawsuit charging that the employer regarded the em-ployee as having a disability, Willner said.

Instead, the manager should approach the employeewithout mentioning any potential cause of his or herdifficulty, Willner said. He suggested that the managerask, ‘‘Are you having trouble with the keyboard?’’

Such a question may lead to the employee self-reporting and the start of interactive discussions. If itdoes not, the manager could say, ‘‘We don’t want to pry.You might want to contact the employee assistance pro-gram,’’ or suggest that the employee contact the compa-ny’s ergonomics consultant, Willner said. Such stepswill hopefully lead to the employee disclosing his or herosteoarthritis to the manager, beginning the interactiveprocess.

In health care settings, where patient wellbeing is atrisk, Willner said stronger action can be taken. For ex-ample, the employer can suspend the surgery privilegesof a surgeon who cannot hold a scalpel steady, and re-quire the surgeon to undergo a medical evaluation.Nonetheless, declaring the possible medical cause ofthe shaking hand before the medical evaluation couldexpose the employer to an ADA claim, he said.

When an employee with a disability and an employerbegin discussing possible accommodations, the em-ployer needs to avoid saying that the condition makes itimpossible for the employee to do a broad class of jobs,Willner said. However, he said employers may deter-mine that an employee’s disability makes it impossiblefor him or her to do one job, without violating the ADA.

Employer-Sponsored Health Assessments. Employer-sponsored health assessments can be effective in help-ing employees adopt healthy behaviors that can helpprevent osteoarthritis and help manage the conditionwhen it is present, Pitt-Catsouphes said. She said theassessments are broadly effective when done in settingsthat provide strong follow-up. Hospitals have had no-table success in using health assessments to trigger realchange in employees’ eating and exercise choices, shesaid.

Willner said health assessments can be ADA-compliant if they are completely voluntary for employ-ees and if doctors disclose nothing about employees’health status to the employer.

Employers may instruct medical personnel to referemployees with osteoarthritis to an EAP, Willner said.Hopefully, he said, the employee will subsequently self-report to the employer, beginning the interactive pro-cess that can lead to an accommodation.

BY JEFF DAY

Enforcement

Navy Repair Center Charged With ExposingWorkers to Cadmium, Lead, Beryllium

F or the fourth time in less than two years, a U.S.Navy repair center is facing allegations from theOccupational Safety and Health Administrationthat employees have been exposed to dangerous workconditions.

The latest citations—for two willful and two seriousviolations—against Fleet Readiness Center Southwestin Coronado, Calif., were issued Sept. 5. They detail in-spections from January through July that found cad-mium, lead, and beryllium dust throughout a huge re-pair hangar that can accommodate up to 30 F/A-18 Su-per Hornet fighters. Among the locations where thedust was allegedly found were a break room, an admin-istrative office fax machine, a wing repair shop, and alunch room, according to OSHA inspectors.

The alleged willful violations involve rules against al-lowing employees to consume food in areas exposed totoxic materials and allowing dry sweeping and brush-ing of surfaces instead of using vacuuming or othermethods to reduce the likelihood of dispersing cad-mium into the air.

Mike Furlano, a spokesman at the repair center, toldBNA Sept. 10 that its officials were surprised at the

NEWS (Vol. 42, No. 36) 823



findings because past OSHA air sampling in the repairhangar found no violations. The lead is probably frompaint on the nearly 100-year-old building, Furlano said.Beryllium was last used in the hangar over 20 yearsago.

As part of the effort to abate the problems by OSHA’sSept. 26 deadline, the building is getting a thoroughcleaning, and rules prohibiting workers from wearingoveralls and other protective clothing in eating areasare being strictly enforced, Furlano added.

These citations were the latest for the Southern Cali-fornia naval installation, where 3,200 civilians and1,000 sailors work, including 350 people in the F/A-18repair facility.

Previous Citations. Prior to the Sept. 5 citations,OSHA had reported 28 alleged violations at the center,including two repeat violations of ventilation and elec-trical equipment standards, and 24 serious violations,many for not following rules covering chromium,permit-required spaces, and ventilation, OSHA recordsshowed.

The repair center did not face financial penalties be-cause federal law does not allow OSHA to fine federalagencies.

The naval repair center is the latest large Defense De-partment repair depot to face multiple violations. In Au-gust 2011, the Air Force’s Ogden Air Logistics Center inUtah was cited for 52 violations, and in 2010 and 2011the Air Force’s Robins Air Force Base in Georgia wascited for 39 infractions. (41 OSHR 714, 8/18/11).

BY BRUCE ROLFSEN

The citations are available at http://op.bna.com/env.nsf/r?Open=sbra-8xzqbn.

Enforcement

Montana Foundry Faces $104,000 FineFor Chemical Exposure, Noise Hazards

A metal foundry in Butte, Mont., faces proposedfines of $104,000 after Occupational Safety andHealth Administration inspections earlier this yearfound hazards related to chemical exposure and exces-sive noise, OSHA said Sept. 10.

The citations against SeaCast Inc., headquartered inMarysville, Wash., included one alleged willful violationcarrying a $55,000 penalty and 13 alleged serious viola-tions.

The willful violation alleges SeaCast did not adminis-ter an effective hearing conservation program by failingto provide adequate training for workers and not hav-ing workers take baseline audiometric tests to measuretheir hearing. The citation described an OSHA noisecheck in March that allegedly found, during an eight-hour shift, a worker was exposed to 140.7 percent of theallowable noise level.

The alleged serious violations cover a range of prob-lems including not ensuring workers wore tight-fittingrespirators, a lack of training on the use of respirators,unsecured storage racks, unguarded machinery, notproviding employees training and information abouthazardous chemicals at the foundry, and high levels ofrespirable silica. During a March visit, inspectors deter-

mined one worker was exposed to three times permis-sible exposure limit for silica.

SeaCast did not respond to a request for comment.Complaints about possible violations prompted the

OSHA inquiry, and the inspection was classified as partof the agency’s national emphasis programs for silicaand primary metals.

BY BRUCE ROLFSEN

The citations are available at http://op.bna.com/env.nsf/r?Open=sbra-8y3n2z.

Enforcement

Missouri Fireworks Manufacturer CitedFor Violations After Blast Injures Workers

S T. LOUIS—A Missouri fireworks manufacturerwas cited for 31 alleged safety violations afterthree workers were seriously injured in an explo-sion earlier this year, the Occupational Safety andHealth Administration said Sept. 5.

OSHA cited Global Pyrotechnic Solutions Inc. for 25alleged serious violations and six other-than-seriousviolations. Proposed penalties total $116,900, accordingto an OSHA statement.

The announcement concerned a March 6 explosion atthe GPS facility in Dittmer, Mo., about 40 miles southof St. Louis. According to a March 7 statement from theBureau of Alcohol, Tobacco and Firearms, which inves-tigated the incident, investigators were not able to pin-point the exact action which caused the explosion ‘‘dueto the extreme volatility of pyrotechnics.’’

An OSHA spokesman told BNA Sept. 6 that agencyinvestigators had concluded that the explosion resultedfrom the ignition of flash powder, but added that thesource of the ignition was unknown.

Handling of Explosives. The alleged serious violationsinvolved hazards associated with the improper handlingof explosives, improper storage of flammable liquids,and a lack of ventilation in rooms where the liquids areused, OSHA said. Several violations concerned processsafety management issues associated with handlinghighly hazardous chemicals. Those violations includedfailing to address safety hazards, provide engineeringcontrols, train workers on emergency-shutdown proce-dures, implement an effective lockout/tagout program,install adequate machine guards, and repair electricaldeficiencies.

The alleged other-than-serious violations involved alack of explosives warning signs on storage buildingsand transport vehicles, using trucks that were not ap-propriate for transporting explosives, other issues withprocess-safety management, and respirator deficien-cies, the statement said.

Charles E. Adkins, OSHA’s regional administrator inKansas City, Mo., said that employers who manufac-ture, sell, display or whose employees work around py-rotechnics must ‘‘recognize potential hazards and takesteps to prevent injuries such as the ones that occurredin this case.’’

GPS, which employs 20 workers, has 15 businessdays from receipt of the citations and penalties to com-ply, request an informal conference with OSHA’s area

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director, or contest the findings before the independentOccupational Safety and Health Review Commission.

A spokeswoman for Global Pyrotechnic Solutionswas not available for comment.

BY CHRISTOPHER BROWN

The citations are available at http://www.osha.gov/ooc/citations/GlobalPyro_279658_0904_12.pdf.

Enforcement

Alberta Energy Services Company FinedAfter One Worker Killed, Two Injured in Blast

V ANCOUVER, British Columbia—WorkSafeBC hasfined an Alberta-based energy services companyC$31,617 (US$32,364) over a natural gas well siteexplosion that killed one worker and severely burnedtwo others four years ago, according to British Colum-bia’s occupational health and safety authority’sSeptember-October penalty report.

The three Integrated Production Services employeeswere cleaning pressurized tanks near Dawson Creek innortheastern British Columbia when an explosion oc-curred on Sept. 12, 2008, inside one of the tanks, a Feb.23, 2010, inspection report said.

The report found the company, which specializes inoil and gas well bores, failed to remove possible ignitionsources for flammable gases in the tanks and pipingsystem.

Pipes between the tanks and flare system were notproperly cut off before the tank-cleaning work began,Worksafe’s inspection report said.

No Management Plan for Operation. The report saidthat while a fire and explosion hazard managementplan existed for the overall wellsite project, none wasdeveloped specifically for the tank-cleaning operation.

‘‘As a result, a number of hazards present during thetank-cleaning operation went unrecognized and uncon-trolled,’’ it said.

Atmospheric testing of the tank was improperly con-ducted, the tester was insufficiently trained for the job,

the testing equipment and method were inappropriatefor the conditions, and the test results were not commu-nicated to all affected workers, the report said.

‘‘The employers involved in this incident did not en-sure that their workers or representatives were ad-equately trained to recognize potential hazards, imple-ment appropriate controls, or safely carry out the workbeing done at the time of the incident,’’ the report said.

WorkSafeBC was fined for alleged violations of Brit-ish Columbia’s Workers’ Compensation Act and the Oc-cupational Health and Safety Regulation.

Penalties imposed by WorkSafeBC are based on anumber of factors, including the nature of the violation,the employer’s compliance history, and the employer’sassessable payroll, WorksafeBC spokeswoman AllySkinner-Reynolds told BNA.

BY JEREMY HAINSWORTH

IN BRIEFOntario Metal Fabricator Fined After Worker Killed

Metal fabrication firm Hubert Sabourin Inc. wasfined C$125,000 ($126,250) Aug. 28 for violations of theprovince’s Occupational Health and Safety Act that re-sulted in the death of a worker, the Ontario Ministry ofLabour said Sept. 5. The charges were filed after aMarch 2011 incident in which a worker was killed whiletrying to measure an empty container at the facility.The container was the third in a row of four, and whilethe worker was taking the measurements, anotherworker used a forklift to retrieve the first container inthe row, causing the other containers to bang togetherand catching the worker’s head between two of the con-tainers, it said. The fine was assessed after the com-pany, based in Alexandria, Ontario, was found guilty offailing to provide adequate information, instruction,and supervision on the dangers of working near vehicu-lar traffic, the ministry said in a statement. The fine in-cluded a 25 percent victim fine surcharge, which goestoward a special provincial government fund to assistthe victims of crime.

NEWS (Vol. 42, No. 36) 825



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LegalNewsRetaliation

Court Says Employee Can’t Link TerminationTo Anticipated Workers’ Compensation Filing

A n adjustor for an ammunition manufacturer, whowas fired after not reporting his absence for sev-eral weeks following an on-the-job injury, failed toshow that his anticipated filing for workers’ compensa-tion benefits actually caused his termination, the U.S.Court of Appeals for the Seventh Circuit decided Sept.6 (Beatty v. Olin Corp., 7th Cir., No. 11-2853, 9/6/12).

The appeals court affirmed summary judgment forOlin Corp. on Jared Beatty’s retaliatory discharge claimunder Illinois law. The evidence showed that the laborrelations manager who decided to fire Beatty did so af-ter learning that he had not been calling in his ab-sences, the court found. It said there was no indicationthat the manager knew, when making the decision, thatBeatty was out because he had been injured on the job.

Beatty argued that a company official told him not toworry about calling in his absences. He also contendedthat he did not call in during a certain period becausehe was following Olin’s order to have an independentmedical examination. But Judge Diane Sykes wrote forthe court that Beatty’s assertions, even if true, did notestablish a retaliatory motive on the decisionmaker’spart.

Judges Richard Posner and Diane Wood joined theopinion.

Company Sought Independent Medical Examination. OnSept. 28, 2007, Beatty injured his side and lower back atwork. He gave Olin’s medical department a no-worknote, good through Oct. 5, from his doctor.

The department then sent Beatty a letter directinghim to provide documentation about his injury and toreport for a medical evaluation at Olin Oct. 18. How-ever, Beatty did not respond to the letter, appear for theevaluation, or return to work.

On Oct. 23, Olin’s assistant director for labor rela-tions sent Beatty another letter stating that he needed toreport to work.

Two days later, Beatty’s doctor gave him another no-work note that extended back to the end of Septemberand forward to Oct. 29. Beatty worked light duty Oct. 31and Nov. 1. Meanwhile, Olin requested an independentmedical exam of Beatty, which took place Nov. 9.

On Nov. 13, Olin’s labor relations manager, BillMoore, learned that Beatty had been absent from workand had not called in for some time. Under companypolicy, failure to call in for three consecutive workdaysis grounds for termination. The manager decided to fireBeatty based on his unexcused absences Nov. 7-13.

Olin’s medical department received the independentmedical report Nov. 19. That day, a company disabilityclaims supervisor emailed others in the department tosay that Beatty was ‘‘off work, not on approved leave,’’

that she had ‘‘discussed termination with our labor re-lations group,’’ and that Beatty ‘‘will be getting an attor-ney soon’’ in light of the IME report.

Later, Beatty received a workers’ compensationsettlement from Olin. He then sued the company in theU.S. District Court for the Southern District of Illinois,which granted summary judgment to Olin on the retal-iatory discharge claim.

Court Finds No Sign Decisionmaker Knew of Injury. Theonly disputed issue was whether Beatty’s anticipatedexercise of his workers’ compensation rights caused hisfiring, the Seventh Circuit said.

There was no evidence that Moore spoke with anycompany official who knew of Beatty’s injury or thatMoore himself was aware of Beatty’s medical statuswhen deciding to fire him, the court found.

‘‘To the contrary, on the undisputed record evidence,Moore fired Beatty because he failed to show up atwork or call in, as required by plant rules—not becauseof his injury, the gaps in his doctor’s notes, or the pos-sibility that he might file a workers’ compensationclaim,’’ the court said.

Beatty asserted that during the period following hisinjury, an unidentified Olin official told him that he didnot need to call in his absences. In response, the courtsaid this assertion did nothing to show that Moore re-taliated against him for exercising his workers’ com-pensation rights.

Additionally, Beatty argued that he was fired for notcalling in Nov. 7-13, 2007, when he was merely comply-ing with Olin’s IME request. The court agreed there hadbeen miscommunication, but said a showing of retalia-tory discharge cause involved more than ‘‘just sloppypersonnel practices.’’

A critical factor for the court was that Moore did notknow about Beatty’s injury or medical status when heissued the termination order, the court said. In addition,evidence did not support Beatty’s assertion that Mooreshould have known about the injury and possible work-ers’ compensation claim.

The court also determined that the disability claimssupervisor’s Nov. 19, 2007, email did not establish cau-sation. The email was sent several days after Beatty’sfiring, the court said, and there was no evidence thatMoore had previously heard any of the comments in-cluded in the email.

Lee Barron in Alton, Ill., represented Beatty. JoAnnSandifer of Husch Blackwell in St. Louis representedOlin.

BY ELLIOTT T. DUBE

Text of the opinion is available at http://op.bna.com/dlrcases.nsf

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