Committee Days 2012 Safety Recap

Gary Auman

Gary Auman (www.dmfdayton.com) is a Partner in the law firm of Dunlevey, Mahan & Furry in Dayton, Ohio. He graduated with an electrical engineering degree from the University of Louisville in 1969, and a law degree from The Ohio State University in 1976. Since then, his practice has focused on defending employers in workers’ compensation and OSHA cases. In 2002, Mr. Auman was awarded the Distinguished Service to Safety Award by the National Safety Council. He has worked with OSHA in its development of safety and health standards, and he has defended OSHA cases in several federal appellate courts. Mr. Auman also represents 4 national and regional trade associations in the construction industry. He can be reached at gwa@dmfdayton.com.

January 1, 2013

The
Safety and Health Committee of the National Insulation Association (NIA) met
during Committee Days for a combined committee meeting and roundtable.
Following the 2011 Committee Days, the committee voted to dispense with a
separate roundtable (with separate registration) and expand the regular
committee meeting to include a roundtable discussion. This article summarizes
the information shared among the attendees at the committee meeting on topics
including new procedures in Occupational Safety and Health Administration
(OSHA) whistleblower cases; the importance of establishing a program to address
heat stress issues for employees working in hot environments; scaffold safety
and scaffold erection issues; cranes, derricks, and safety issues concerning
this area of regulation; OSHA enforcement initiatives; and the possible OSHA
regulatory agenda following the election.

New
OSHA Whistleblower Program

OSHA has instituted a new program to address
whistleblower complaints, possibly as the result of an increase in the number
of such complaints being filed by employees. In March 2012, OSHA expanded the
issues it will address under whistleblower complaints to include actions taken
against employees who report an on-the-job injury and those who fail to follow
the employer’s procedures for reporting on-the-job injuries. Addressing the
typical whistleblower complaint has followed a fairly set pattern. After a
complaint is received by a local area office, it is assigned to an investigator
for OSHA who typically does not report directly to the area director, but to
the OSHA regional office. After speaking to the complainant, the investigator
begins the investigation by contacting the employer and typically proceeds by
interviewing witnesses for both sides of the complaint. Following the initial
interviews, the OSHA investigator usually makes an effort to get the matter
resolved through settlement before proceeding to the next level of
investigation and the possible filing of a complaint, which can result in a
case moving into Federal District Court.

NIA members attending learned that, under new procedures,
OSHA now employs a process of alternative dispute resolution to resolve these
issues. After OSHA receives a complaint?and usually before any investigation is
performed?the employer is contacted by someone from the OSHA area office
charged with trying to mediate and resolve the complaint without the necessity
of a formal investigation. Initial attempts are made informally; and the
employer is advised that if the matter can be resolved within a short period of
time, the need to file a position statement as to its response to the
whistleblower’s allegations may be obviated. This can save the employer a fair
amount of money because it can avoid the necessity of retaining counsel to
oversee preparation of documents to be supplied to the OSHA investigator. If
this informal procedure is not successful, but the parties truly seem to want
to resolve differences without going into formal investigation, a formal
mediation may be conducted?even though the employer has already filed its
position with OSHA. While no employer wants to admit liability or
responsibility for something it honestly did not do, from a purely economic
standpoint, being able to resolve a whistleblower complaint for a relatively
small amount of money without any admission of liability and without the
necessity of bringing in legal counsel can be an attractive proposition. Of
course, even an inexpensive settlement may not be desirable if other terms of
the settlement are not acceptable. As with any settlement in any litigation, be
sure you are knowledgeable of all the terms before signing.

Heat
Stress Issues

Heat
stress is an area that has moved from a general regulatory situation to one in
which “informal” guidelines have been recommended and will, in all likelihood,
form the basis for judging general duty clause violations in the future. In a
recent decision, the Occupational Safety and Health Review Commission (OSHRC) seemed
to take discretion out of the hands of the employer as to when a heat stress
hazard exists, providing the employer with much more rigid guidelines to
protect its employees and avoid a citation.

Under the new guidelines, the OSHRC referenced a National
Institute for Occupational Safety and Health (NIOSH) document recommending a
program to address heat stress. Some of the steps in the program include
re-acclimating employees who have been absent from a hot environment for more
than 3 days, and for the employer to develop a work/rest regimen. In the OSHRC
decision affirming a serious citation against an employer, the judge concluded
that the employer’s program was deficient because it did not have an
established work/rest regimen. Rather, it depended on employees asking for
breaks, which is considered insufficient. Employers must gauge the level of
heat exposure and the related stress on employees, and establish an appropriate
work/rest regimen.

A third part of the decision was the conclusion that merely making
water available for employees to drink is not sufficient. The OSHRC
recommendations include that the employer provide cool water and encourage
employees to drink 5 to 7 ounces of cool water every 15 or 20 minutes. A
general instruction to employees to “drink lots of water” was deemed to be
deficient because it does not encourage employees to drink a set amount of
water in a set period.

The decision additionally requires that
employers not only provide regular breaks, but cool rest areas where employees
take those breaks. Rest areas should be maintained at approximately 75
°F and should be
close to the work site. In the judge’s decision, the actions of the employer in
permitting employees to walk about 15 minutes to a break area to sit in an
air-conditioned vehicle was not adequate. The judge questioned whether an
employee suffering from heat stress would be able to walk 15 minutes to get to
a cool area.

These are just some of the points discussed during the
roundtable. All NIA members need to take a look at their heat stress program
and remember that this issue can be a problem at overheated worksites as well
as in hot climates.

Scaffold
Safety

Following
the discussion on heat stress, the conversation moved to scaffolding. Scaffold
safety is a high-visibility issue that is emphasized by OSHA. The committee
group discussed the need to have every scaffold green-tagged (approved) to show
that it has been inspected by a competent person. The status of the scaffold
needs to be checked at the start of each shift. Even if you use a
scaffold-erection company, you should have your own competent person place
his/her green tag on the scaffold after checking it. Do not forget that this
competent person needs to be “competent” in scaffold safety specifically.

Another area of great concern?which OSHA is emphasizing?deals
with the need to have toe boards on the working areas of scaffolds, especially
if employees will be working or passing below the scaffold. Even though you
have compliant guardrails to provide fall protection, do not lose sight of the
fact that you also must protect employees working below from the possibility of
something being kicked off one of the scaffold planks and striking the employee
working below.

Attendees discussed the need to have a scaffold
safety-competent person on site when a scaffold is in use, remembering that
scaffolds can only be erected, dismantled, or moved under the supervision of
such a competent person. A competent person for scaffold safety may not be the
same as the job site competent person, who may be more of a generalist as
opposed to someone focused in the scaffold area. Dovetailing with this
requirement is the fact that the design of scaffolding must be done by a
qualified person. While a qualified individual also can be a competent person,
these are distinct roles and can be filled by different people. While erecting
a scaffold, the employer shall have a competent person determine the
feasibility and safety of providing fall protection for employees who are
erecting or dismantling the supportive scaffolds. Employers are required to
provide fall protection for employees erecting or dismantling supported
scaffolds where the installation and use of such protection is feasible and
does not create a greater hazard.

Finally, the attendees discussed the need for barricading
areas under scaffolding when it is not possible to completely protect employees
below the work area on scaffolds from exposure of falling objects with toe
boards.

Cranes
and Derricks      

The
final topic discussed concerned cranes and derricks. The date for full
compliance with the cranes and derricks standard is fast approaching. During
this portion of the roundtable, attendees were reminded of the need for
employee training in the area of rigging and hand signals. For example, a
person in charge of signaling must know and understand signals; be competent in
using signals; have a basic understanding of crane operation; and be able to
pass a verbal or written test, plus a practical test, concerning the use of
signals. If a signal person is evaluated by a third-party qualified evaluator,
the employee’s qualifications and certain documentation is portable from one
employer to the next. However, if the evaluation is performed by the employer’s
own qualified evaluator, the certification is not portable when the signal
person leaves to go to another employer.

Attendees also were reminded that
inspections of cranes?for example, post-assembly inspection of a crane?must be
performed by qualified and/or competent persons.  The daily or per shift
inspection and the monthly inspection of the crane may be performed by a
competent person, but the annual inspection again must be performed by a
qualified individual. Crane requirements met in state-plan states must be at
least as effective as comparable federal standards. Members who operate in
states where there is a state-approved OSHA program still must comply with all
federal requirements. It is essential that all employers comply at least to the
level of federal OSHA requirements because most employers in our industry will
find themselves moving from state to state.

Committee Meeting Wrap-up

Participants
in the committee meeting felt that their time was well spent. NIA wishes to
encourage all members to participate in the various safety and health
activities, including the safety awards and the Health and Safety Committee
meetings at Committee Days and the Annual Convention. Your employees are your
most important resource. It is imperative that you take whatever steps are
necessary to provide a safe workplace for them and ensure as much as possible
that they are not needlessly exposed to hazards that can result in injuries or
death.