Of all of the controls in the Hierarchy of Controls, Personal Protective Equipment (PPE) is the one most people are familiar with. Why? Well, PPE is quick, easy, often less expensive than other options, and readily available. What you might not realize, though, is that PPE is what OSHA considers to be a “last resort”. When it comes to the Hierarchy, PPE is supposed to be used either a) while other controls are being implemented, b) in conjunction with other controls or c) when all other options have been exhausted. In other words, a full body harness should not be your go-to fall protection solution. Yet, so many companies turn to PPE first.
Personal Protective Equipment really is exactly what the name implies: protection you use personally. So, while a personal fall arrest system is considered PPE, a guardrail is not. While a respirator is considered PPE, ventilation is not. PPE includes most things required to be worn on the job, such as earplugs or other forms of hearing protection, hardhats, safety glasses or goggles, face shields, gloves, coveralls, steel or reinforced-toe boots, reflective vests, and so much more. PPE is so prevalent among the workforce that you’d think injuries would be virtually non-existent, but they’re not. Why?
Insufficient / Wrong PPE
PPE sometimes gets thrown at a hazard without really evaluating the situation. Hearing protection is great, but does it do the necessary job? Ear plugs are rated for noise reduction, so how do you know that grabbing that pack of earplugs out of the jar in the office will reduce the noise below acceptable levels? Has a noise survey been performed? If so, was the equipment selected based on that survey? Or in terms of respiratory protection, has anybody determined what the dust in the air is composed of before deciding to buy a cheap box of dust masks? Even if you know what the dust is made of, has anybody sampled to determine the levels to which your employees are being exposed? PPE is not a game of guesswork, though it might seem that way if you were to wander into various workplaces throughout the United States. Careful consideration needs to be taken to determine what PPE is appropriate to protect your employees from workplace hazards
PPE is Not Properly Cared For / Used
PPE is only as good as the user. Safety glasses offer no eye protection if they are constantly left on top of the user’s hardhat. A reflective vest offers no visibility if the user throws a coat over it when he or she is cold. A respirator may do more harm than good if hazardous dust is allowed to accumulate on the inside of it and it is not properly cleaned. A full body harness, rather than save your life, could cause serious internal damage and other bodily harm if it’s not worn properly. Using PPE as a hazard control includes using it properly, maintaining it properly, and caring for it properly. Harnesses are supposed to be kept hung in a cool, dry place, yet how many do you see lying around a jobsite or in the back of a truck exposed to sunlight (UV decay), rain, freezing temperatures, and more? When that harness fails, is it because it was the wrong equipment? No. It wasn’t properly cared for. Respirators should have change out schedules depending on the filters you are using and exposures your employees have. Does your plan have one? If not, how do your employees know when to get new cartridges. Do they know to get new cartridges? And can a user even use equipment properly if they don’t know if it should even be used in the first place? Are your employees inspecting their PPE or are they just pulling it out of the toolbox and going to work? How will they know if something has gone wrong if you do not have them doing inspections? You can’t throw PPE at a problem and expect it’s going to help without the proper preparations.
Which brings us to our next point: training. How do you expect your employees to know how to properly inspect, use and care for their equipment? If you don’t train them, there’s a good chance they may barely be able to figure out how to put a harness on, let alone how to put it on properly. If you don’t train them, they could be using a respirator with cartridges that have broken through, but they have no idea because the hazard is not one they can smell or taste. They may be using ear plugs that should do the trick, but have been inserted improperly. You can’t assume people will just know what to do. Not only is training a good idea, but it’s required by OSHA. Take the time necessary to ensure your employees are able to keep themselves safe. You don’t need to do an eight-hour training to show employees how to wear earplugs, but you do need to do some training.
The Hierarchy of Controls is a phrase used often in the safety and industrial hygiene world. If you weren’t familiar with it before this series, hopefully now you’re better informed. Of course, now that you know what it is, there’s still a lot of work to do: you still need to investigate your hazards, you still need to determine what the best possible control is, you still need to design and implement that control, and you still need to train your employees. A breakdown at any step could cause failure. And, when human lives are at stake, failure is unacceptable.
In the first two articles on the Hierarchy of Controls, we discussed controls that were intended to mitigate hazards at their source either through elimination, substitution, or an engineering solution that made it so the employee was no longer exposed. With administrative controls, we take a little bit of a turn from that approach. At this point in the hierarchy, the reality is that the hazard is one that must be – or can be – lived with, so long as certain precautions are taken or certain levels of exposure are not exceeded. Administrative controls, which may be used in conjunction with engineering controls and/or PPE, would also be required if work was to continue while engineering controls are being developed. Ultimately, though, administrative controls are not the optimal solution and cannot be the selected method of abatement if a hazard, or employee exposure to that hazard, can be eliminated.
Examples of administrative controls are fairly simple: warning alarms, for example, are just that – alarms that let you know when something isn’t right. An alarm might notify you of something as common as a guard being left open on a machine in a manufacturing process or it might be on the rotating structure of a crane working near power lines that could not be de-energized, to let you know you cannot swing any further. Obviously, neither of these by themselves would eliminate a hazard, but they would provide an employee with a warning. A more effective approach for the guard would be an engineering control: to have an interlock that prevented the machine from running when the guard was open. Without it, an employee could ignore the alarm and reach into the machine. For the crane, the alarm would not prevent the crane from swinging closer to the power lines. Instead, you are relying on the operator to heed the warning.
Labeling systems would also be considered administrative controls. We see safety labels everywhere, but clearly they are not sufficient to protect workers. Labels are often used along with other controls to keep employees safe. Warning of high voltage, a certain chemical in use, or that an area is a high-noise area, among many other things, labels act as a good reminder for workers not to enter areas in which they do not belong, to follow certain procedures, or to wear certain PPE. They, alone, will not protect a soul if they are not heeded by the employees.
This brings us to another form of administrative control: training. You can put as many engineering controls in place as you want, you can require PPE, you can warn of hazards in an area, but if you don’t train your employees how to comply with the safety requirements, controls can still be bypassed. Somebody who is not trained on the dangers of entering a high noise area may think it’s really not that big of a deal, for instance. Perhaps you’ve substituted a non-silica product for sand in your sandblasting operations, but you still need sand in your facility for other applications. If you don’t train your employees on the hazards of silica as well as what your new procedure is, how will they know to use the safer product (or why will they bother if they can’t find any, but sand is readily available)? You may not have realized that training was an administrative control, but hopefully you’ve been using it all along.
One final method that needs to be discussed is a little more on the complicated side, compared to other administrative controls. Reducing the amount of time somebody is exposed to a hazard can be an effective control, but it’s not as simple as placing a sign or adding a warning alarm. For instance, hazards like noise and chemical exposure are often given permissible exposure limits (PELs) by OSHA that are measured in time-weighted averages (TWAs). So for instance, Carbon Monoxide (CO) has a PEL of 50 parts per million (ppm). This does not mean that the moment somebody is exposed to Carbon Monoxide in an amount greater than 50 ppm they are going to die, it just means that when you average out the amount an employee is exposed to over the course of an eight-hour day, it needs to be below 50 ppm. There are also Short-Term Exposure Limits (STELs) and Action Levels (ALs) to be concerned with, and though we can see that determining an allowed exposure time might be a bit involved, we’d need more room/time than this article allows to go into detail on it. Suffice it to say, as long as employee rotation through a job can keep the employee under all applicable limits, then it is an acceptable solution. While CO has a limit, in many cases, employers would find the source of emission and eliminate it because CO is much too dangerous. A more common application of controlling exposure time might be in a high noise area or a hot work area. By rotating other workers into these areas throughout the day or by simply putting a cap on the amount of time spent in them, workers can be kept below the allowable exposures for noise or heat.
Administrative controls can be simple, but remember, they are often not the best or sole solution. Using administrative controls should almost always be looked at in the context of other controls that are being put in place to determine how they can be paired to provide employees with the best actual protection possible. Now, with elimination, substitution, engineering controls, and administrative controls covered, we are left with one final level of the hierarchy in the next article: PPE. Yet, if it’s the final level of the hierarchy, why is it that it is so often the first solution employers turn to? The final article in our series will explain just that.
In the last article, we discussed the first level of control when it comes to protecting employees from recognized hazards: elimination or substitution. The concept, while possibly difficult to implement, was simple to understand. Unfortunately, this second step, engineering controls, is often more difficult in both concept and implementation. (Note: there seem to be two schools of thought on this hierarchy or controls. One is that substitution and elimination fall under engineering controls and the other is that they are separate. For the purpose of this article series, we’ve chosen to separate them into different categories.)
Engineering controls, to put it as succinctly as possible, are methods designed to get as close to eliminating the hazard as possible, without actually eliminating it. This is done by designing something into the facility, the piece of equipment, or the procedures themselves to reduce the hazard or the employee’s exposure to it. As long as they are designed properly (and used by employees properly) they tend to be very reliable.
An example of an engineering control is isolating a hazardous portion of the process. In manufacturing, for instance, a part of the process may be spray painting parts. This task poses both health and ignition concerns. In order to isolate the hazard, many manufacturers would utilize a spray booth. The booth prevents the worker from inhaling the paint fumes and paint residue while also reducing the risk of explosions and fires. A glove box for handling hazardous materials and chemicals is another example of isolation as the box allows the employee to do the work while not being exposed to the material/chemical.
A process change is also considered an engineering control. This control is common (though maybe not common enough) when dealing with silica. Using water to suppress concrete dust or a HEPA-filtered vacuum attachment to remove the dust from the air are not only good controls, they are – in ways – integrated right into the new silica standard. Automating the hazardous work so that no employee has to be exposed is another example of a change in process.
Another option is ventilation, the most effective of which is local exhaust. Local exhaust removes the hazard (in this case, a fume, gas, vapor, or dust) at its source, while general ventilation allows the hazard into the work area as it’s diluted to an acceptable level or as it’s pulled or pushed (depending on whether it’s a positive or negative pressure system) into an exhaust duct, door or window. Dilution methods are really only able to be used in very low toxicity situations where employees are able to maintain a safe distance from the source. General ventilation can be costly as large amounts of air need to be moved in larger spaces and that air often needs to be temperature controlled to keep the workplace comfortable.
Often, an engineering control doesn’t exist in a vacuum. Some need to be used in conjunction with other controls, such as personal protective equipment, to ensure they are used and working properly. Training is always required because no system is human-proof. In fact, engineering controls are definitely not a one-size-fits-all solution. Before one is selected, it’s necessary to look at a number of factors. How easy is it to use? Your employees are going to be expected to use it properly. An over-complicated system could greatly increase the possibility of human error or, worse yet, the possibility that your employees choose to attempt to bypass the system. How reliable is it? Engineering controls need to have a practically perfect rate of success. If they don’t, not only are your employees not protected, but they may be operating under a false sense of security. How much does it cost? Yes, as safety professionals we like to think it’s “protect the employees, no matter the cost!” but in the end, employers do still exist to make a profit. That’s not to say that a company will not implement necessary controls, but they’re not going to be happy if they spend a fortune on one solution only to discover that there is a cheaper and equally effective solution available. Do your homework before selecting any one option.
Engineering controls are your best option when the hazard cannot be eliminated. Ensure the safety of your employees by selecting/designing the proper solution and then train your people so that the control works as intended. If the possibility of substitution, elimination, or engineering controls all fail – or if you simply as desire additional protection – administrative controls will be the next step.
If you’re a safety professional, it’s been ingrained in you since you were in diapers sitting through your first OSHA 30 hr. How many times have you caught yourself in a conference room shouting, “But don’t you understand?? PPE is a last resort!”? Countless, I’d imagine, but the problem is that PPE is what people know. PPE is easy and readily available. Ask somebody what engineering or administrative controls they could have used to abate a hazard and they’ll look at you like you’re still wearing diapers (that is, assuming you’re not).
For those unfamiliar with the hierarchy of controls, a tiered approach to solving problems might seem alien. Even for the initiated, some aspects of the hierarchy can be confusing. So, rather than just tell you what the hierarchy is at face value, let’s take a more in-depth look at each level, starting with two of the easier concepts: elimination and substitution.
The concept of elimination is easy, because it’s as simple as it sounds. Take the hazard that your employees face and eliminate it. Done, piece of cake.
Maybe not. The problem with elimination is that if the implementation of it was as simple as it sounds, everybody would be doing it, wouldn’t they? What company would not choose to completely eliminate the chance of their employees getting hurt if doing so was simple? Not many, I’d venture. In fact, according to the hierarchy of controls, if Elimination is available to an employer, it is the option they must choose. Remember, the employer has a duty to provide a workplace free of hazards to their employees. If the employer is able to do that, but chooses not to, they could be looking at a Willful violation, should an OSHA inspection occur (not to mention employee injuries and fatalities that might occur due to your failure to remove the hazard).
If we are talking about elimination in terms of equipment or materials, such as removing some flammable gas containers from an area where hot work is being performed or eliminating an unnecessary blade on a machine, the solution should be 100% effective, as long as there isn’t a communication breakdown that allows somebody else to reintroduce the hazard back into the workplace or process.
Again, this is pretty much what it sounds like. With substitution, we are identifying a hazardous substance or piece of equipment and substituting a substance or piece of equipment that is not hazardous. For instance, instead of a solvent-based paint, use a water-based paint. Instead of sand-blasting, use a non-silica containing abrasive material. If an alternative product exists on the market, substitution can be a very effective solution.
Except, there’s a reason why the hazardous versions still exist. If the substitutions were perfect, they’d force the hazardous substances off the market. So why don’t they? Well, the downfalls of substitutions tend to usually be quality and cost. Let’s take the paint example. Paint used to be almost exclusively solvent based, but solvent based paints are high in VOCs (volatile organic compounds). Over time, as VOCs were required to be reduced in solvent-based paints, other paints came on the market, such as water-based. Early on, the quality of water-based paints was inferior to solvent based, so some companies probably continued to stick with the solvent-based to ensure a better job. Unfortunately, something like that leaves a stigma and many people probably still believe to this day that solvent-based paints are superior despite the fact that with current technology, many water-based paints are not only equal to solvent-based but superior to.
Regardless of quality, though, cost can still be prohibitive. Oftentimes, the production of a synthetic material costs more than the acquisition of a natural one, demand for the less hazardous version drives up its cost, or any other number of reasons that make the alternatives more expensive. It’s this industry’s equivalent of why a grilled chicken salad costs $9.99 and a burger costs $5. Cheaper usually does not mean better for you.
The other downfall to substitution is just because a material does not pose the same hazard as the one you’re replacing, does not mean it doesn’t pose a hazard at all. An employer needs to do the necessary research to ensure that they are not replacing one hazard with another.
Elimination and substitution are not only great ways to abate hazards, but need to be your preferred way. In other words, engineering controls, administrative controls, and PPE should not even come into the discussion until elimination and substitution have been ruled out (except in the case where PPE use is required at all times, like a 100% safety glasses policy). Take the time to look at some of the solutions your company has come up with for the hazards in your workplace. Are there situations where elimination or substitution could have been used? You may be surprised how often your answer is “Yes.”
After you’ve done that, keep your eyes open and come back for our next article which will discuss what is meant by “engineering controls”.
Anybody that comes in even the briefest of contact with the world of occupational safety knows that fall protection is a hot topic. There are blogs, social media groups, and even entire companies dedicated to it. While some topics are treated as an elective within an OSHA 10 or 30-hour course, fall protection is one that is required and it’s for good reason. Falls have been at or near the top of the list for occupational fatalities and at the top of the list for construction fatalities for years. Rather than getting better over time, the number of fatalities due to a fall is rising. According to the Bureau of Labor Statistic’s most recent data, occupational fatalities due to a fall to a lower level rose 11% from 2013 to 2014. Why do falls remain this great, mysterious thing? If workers truly understood where and why they happen, or what could be done to prevent them, we’d have no falls at all, right? Maybe understanding the fall itself can help prevent them. So let’s look at one step-by-step.
Prior to the Fall
Morning meetings have been held, tasks assigned, equipment distributed, and work is proceeding as usual. It’s during this time, however, that a bad decision is made. It’s at this point that you choose to climb to an elevated work area that is not guarded and do so without your personal fall arrest system. Maybe you aren’t trained in fall protection and either a) don’t know you’re supposed to have fall protection or b) are unsure of how to properly use it. Perhaps management personnel knew that proper precautions weren’t in place, but put production ahead of safety. Perhaps, you actually brought your harness and lanyard but didn’t bother to hook up to the anchor point. Falls happen due to a lack of planning more than anything else.
At The Moment of The Fall
If you talk to people who don’t feel it necessary to use fall protection while working at heights, you’ll hear such things as, “I have very good balance,” or, “I have good reaction time; if I was going to fall I’d catch myself.” Agility and fast reactions aren’t enough however, as losing your balance often has nothing to do with a fall. Sometimes a platform gives way, or you’re struck by a falling object which knocks you unconscious. Sometimes you pass out or get lightheaded from a sudden drop in blood sugar due to a medical condition – maybe even a medical condition you did not know about. Sometimes a sudden gust of wind picks up and blows somebody clear off a roof. The fact of the matter is, balance means nothing against the forces of nature or a 5000 pound suspended load that went astray. Balance won’t save you when, in reality, the moment of fall was probably one that you never saw coming.
If you can’t see something coming, how do you react? How do you “catch yourself”? Sure, maybe if you felt yourself losing your balance you could grab onto something to steady yourself. That’s obviously possible, but what if you just outright fell? What if you got knocked off a platform? The fact of the matter is that you’ve fallen 6’ in the blink of an eye and there’s nothing you’re going to be able to do to stop yourself.
Let’s face it, the results of impact aren’t pretty. If they were, falls would not result in fatalities as often as they do. If you are “lucky” enough to survive a fall, you could be facing medical issues for the rest of your life. Not only can a fall break bones, it can rupture internal organs, cause severe concussions or another brain injury, and result in paralysis, a coma, or other permanent disabilities. And you don’t need to fall ten stories for this to be the case. According to one NIOSH study, more than 25% of all fatalities were the result of a 6 to 10-foot fall from a ladder. Make no mistake, other than the very rarest of exceptions, getting up and walking away unharmed from a significant fall is the stuff of action movies and cartoons.
The immediate aftermath of a fall is chaotic and intense: people scrambling to call 911, others rushing to your aid, and still others are frozen in disbelief, panic, or shock. People are most likely not thinking clearly and may be putting themselves or others in danger while reacting to what just happened. Machine operators may leave equipment unattended, friends and co-workers rush through or into unsafe areas to get to you, some people may even be putting themselves in the same fall exposure you just had trying to get a glimpse of what happened to you. Shortly after that, there’s the notification to your family and whether the fall was fatal or not. This is an extremely trying experience for both your family and the person tasked with making the call. Your spouse and children, your parents, your siblings, and your friends will be devastated. Counseling will be needed for many of them as well as co-workers. Those that witnessed the event may be traumatized and may never be able to return to that job themselves. For survivors, falls are life changing. If you’re able to work at all, you may never be able to work in your field again. Psychological issues are prevalent. Marriages fall apart. A fall affects so much more than just the physical well-being of the person involved.
In a fall, the moment of impact may seem like the end, but it’s really just the beginning. The fall may have involved just one person at first, but by the time it’s over dozens are affected. However, falls are preventable. There needs to be a willingness to plan in order to make sure the selected fall protection solution is appropriate. There needs to be a willingness to learn so an employee can ensure they know how to inspect their equipment and use it properly. There needs to be a willingness to do what’s right, even when it’s not the cheapest or quickest way to get things done. Given all that, maybe then, hundreds of lives a year won’t be lost on the job to fatal falls. Maybe then, hundreds of more people won’t have their lives shattered each year by the loss or debilitation of a loved one. Maybe then, the number of fall incidents will finally begin to decline.
If you use personal fall arrest systems (PFAS), you should be well-trained and well-versed in fall clearance. If, by some chance, you’re not, you can get a nice refresher here. Go ahead, we’ll wait.
Now that you’re an expert, you must realize that you’re an expert in fall clearance calculation when done properly or in ideal conditions. Unfortunately, as we all know, not everything goes exactly as planned. In fact, it’s probably more accurate to say that pretty much nothing goes exactly as planned. What follows are a few things you need to consider that could cause your fall distance planning to be dangerous miscalculation.
Location of Your Anchor Point
You’ve trained your personnel and they fully understand that they need to do to calculate fall distance. All signs point to having enough room to go ahead and use 6’ lanyards with deceleration devices. The workers head to their work area, fully harnessed, take their locking snap hooks and tie off…at their feet.
In this situation, your employees just took a workable situation and made it an unworkable one. They took effective fall protection and made it ineffective. Because of the choice of anchor point, two things just occurred:
- The fall distance is wrong. If the calculation was made with the assumption that the anchor point was at D-ring height or above (as it should be), you’ve now subtracted 4-5 feet of distance. If your height was 35’ and is now 30’, maybe that doesn’t seem like the biggest deal in the world (it is, see point 2), but if your height was 20’, it’s now 15’. You’ve gone from a point where using a 6’ lanyard with a deceleration device was acceptable and effective to one where it is neither. In a fall, your employee would now strike the ground.
- Your freefall distance is wrong. In simplest terms, you are allowed a maximum freefall of 6’ (though, it is really based on Maximum Arresting Force). With a 6’ lanyard and deceleration device, your freefall is 6’…PLUS the distance from your D-Ring down to your anchor point. Why? Because your fall will not begin to be slowed until your lanyard is at full extension – 6’ – but in order to get there, you have to first fall PAST your anchor point. Even if your system protects you, you are facing a slew of other injuries, both internal and external.
SRL Over an Edge
Workers use self-retracting lanyards (SRLs) with a great deal of confidence, knowing that they are going to lock into place quickly, virtually eliminating any fall at all. In many instances this will be true, but keep in mind that a certain speed…a certain amount of force…needs to be achieved in order for the locking mechanism to engage. Think of a car seatbelt: If you gently step on your brakes…nothing, but if you slam on the brakes, the belt locks into place, forcing you to uncomfortably and inhumanly press your body back into the seat in order to feed enough of the belt back into the casing in order for the mechanism to release. An SRL works the same way. Without that force, the braking mechanism does not engage. When might this occur? Well, it is very likely if your anchor point is directly behind you when working near the edge of a roof, for example. If you fall, the SRLs cable or webbing over the edge of the building may be slowed to keep the forces low. In this situation, your SRL can play out completely until you hit the ground. Perhaps it was slow enough to prevent serious injury, perhaps not. Ensure that your SRL use and anchor point selection do not allow for this to happen (there is potential for this situation over the rails of an aerial lift, too).
We often talk about construction being a dynamic environment, but there are plenty of situations in other industries where things change throughout the day. Where once you had proper fall clearance, you may no longer. For example, what if you are working at the edge of a roof and have properly calculated your fall distance? You are wearing the proper fall protection and you have plenty of clearance between you and the ground. All sounds good, right? What if the area over which you are working is a loading dock? While you’re not paying attention, a truck backs in and unloading activities begin. Suddenly, you fall. Were your calculations effective? Most likely, no. Most likely, this change wasn’t taken into account. It is very important to be fully aware of the activities that are occurring in your work area and plan accordingly if they should affect your situation.
Generally speaking, calculation of fall clearance is pretty simple and straightforward, but as the person determining that clearance, it is crucial that you are knowledgeable of things that could affect your situation and could nullify your planning. Make sure you’ve thought out every possible scenario and, as always, make sure the end users are properly trained. Falls are bad enough. Pitfalls can be worse because they take you by surprise by sabotaging what you thought was effective planning.
“When will the new walking/working surface rules arrive?” is a question that’s been asked for many, many, many years (as in about 20), but it finally looks like we may have an answer. According to a regulatory agenda published by OSHA in May of this year, the Administration plans to release the final rule for Walking/Working Surfaces this month (August 2016). The rule had been so long in the making, that it essentially needed to go back to the drawing board in order to properly account for new technologies that did not exist in earlier versions.
So what is different this time? Well, with the rule ready to go, despite the fact that regulatory agenda dates are often missed, the administration wants to try to take advantage of the Obama presidency to get this done. Traditionally, Democrat administrations tend to be more regulation-friendly than Republican administrations and OSHA does not want to take a chance on the Presidential Election, hence the push for a release of the final rule this month.
What’s new? Well, mostly fall protection. It may come as a surprise that there is very little said about fall protection in the General Industry standards. In fact, personal fall arrest systems are not mentioned at all. Other than physical barriers and railings, there is no fall protection guidance. The proposed final rule aims to change that. In addition to addressing fall protection and personal fall arrest, the new rule includes updated national consensus standards and industry practices.
The actual changes will occur in two subparts: D (Walking/Working Surfaces) and I (Personal Protective Equipment). Subpart D changes will simply be the requirement to have fall protection, while Subpart I will go into the performance requirements of that equipment. Don’t worry about having new things to remember. If you’re already familiar with construction and Shipyard standards, you will recognize much of what you see as some of the same language is being pulled in order to maintain consistency and avoid confusion.
While the implementing the new rules may cost money, OSHA fully expects that company savings will outweigh costs by almost a factor of 2. And that’s for companies that are not already implementing any aspect of this. Many forward-thinking companies that fall under the General Industry standard may already be using the Construction or Shipyard regulations as a model for their fall protection programs. In this case, extra costs may not exist.
Regardless, OSHA expects the rule to have a big impact. OSHA administrator David Michaels said so himself in an interview in the July issue of the National Safety Council’s Safety and Health magazine. Aside from financial savings, the Administration expects the new rules to prevent 30 annual fatalities. And, in the end, that’s the ultimate goal. Saving lives.
By now, you may have heard: OSHA issued a new final rule in regards to electronic recordkeeping. Great! What the heck does that mean?
Well, funny you should ask, because I’ve got answers!
Just the Facts
Let’s start with the basics. The final rule was issued by OSHA on May 12, 2016 and will require certain employers to electronically submit their injury and illness data (300, 300a, and 301 forms) to the Agency annually (before these were only collected through an inspection, a survey, or when things like fatalities and hospitalizations required employers to notify OSHA).
Those required will be:
- Companies with 250* or more employees who are otherwise already required to keep these records.
- Companies with 20 to 249* employees in “certain industries”. This is primarily industries OSHA deems highly hazardous such as utilities, construction, manufacturing, retail, transportation, and health care.
- Other companies upon OSHA request.
*When determining your number of employees, you must include part time, seasonal, and temporary workers.
These requirements will phase-in beginning in July 2017 and will be fully implemented by March 2019.
In addition, the new rule includes new protections for employees against retaliation and will require OSHA to scrutinize incentive programs and post-accident drug/alcohol screening to ensure they don’t discourage reporting of illness and injuries.
In terms of anti-retaliation measures, employers must notify employees that they have a right to report work-related injuries and illnesses, that they will not be discharge or discriminate against for reporting them, and the employer is prohibited by law from discharging or discriminating against somebody for reporting a work-related illness or injury (effective August 16, 2016. While OSHA has had this in their purview for some time, the new rule allows OSHA to bring action even without an employee complaint of retaliation, which was previously required in order to begin an investigation).
As for discouraging employees to report, incentive programs must not punish an employee in any way for reporting an injury/illness. For example, if a monthly safety bonus is given, and an employee is not eligible if they have an OSHA recordable incident, OSHA may consider this retaliatory and/or a means to discourage an employee from reporting their illness or injury. In addition, blanket post-incident drug/alcohol testing will not be possible. While OSHA will still allow “for cause” testing and testing mandated by a government agency (i.e. – the DOT), the company is going to have to show that requiring drug/alcohol testing in any other instance was reasonable. For instance, if somebody gets a splinter that gets infected, they may not consider testing reasonable while if an employee swerved and crashed a company vehicle, they may.
What are the Consequences?
One major concern is that the reason many companies instituted blanket post-incident drug/alcohol testing was to eliminate any possibility of a false discrimination claim. The prohibition of this type of policy seems to open that back up. In addition, the National Law Review cited four consequences of this rule in a recent article they published. To paraphrase:
1 – Information will be used to identify new bad actors. Those reporting higher than normal injury and illness rates can expect their chances of inspection to dramatically increase.
2 – Electronic submission opens the door for data breaches and hackers. Personal information of injured employees could be vulnerable prior to the agency scrubbing that information from the files.
3 – This information will be made public, so companies could be negatively affected by this before they have a chance to defend themselves.
4 – The information will be made public, so may be used as a tool for unions to find companies whose workforce may be more interested in unionization.
5 – It’s a new weapon OSHA didn’t have before – the ability to cite any company reporting policy/procedure for being “unreasonable”.
This is now the law and, while it will take some time to fully implement, you can begin notifying and training your employees now. In addition, it’s probably time to review your incentive programs and drug/alcohol testing policies. Don’t let this catch you off guard. You know it’s coming, so make sure you don’t leave your company vulnerable to non-compliance.
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We often focus here on what you need to do to keep your employees safe and to ensure your company is compliant with the law, but at some point in time, some of you are going to be involved in an OSHA inspection and the outcome may not be as favorable as you’d like. In this post, we’re going to break down the different types of OSHA violations you could receive and what each of them means. Possible penalties will be posted as the current number followed by the new number in parentheses, which take effect August 1st. Keep in mind that these penalties are for federal OSHA. State run programs may be different.
A de minimus violation is a violation that comes without monetary penalty. This may occur because OSHA recognizes that the violation, while non-compliant, poses no actual risk to the employee. An example of this has been cited numerous times in this blog: If somebody working on a roof – not performing roofing work, but something like HVAC installation – sets up a warning line 15’ from the edge of the roof, this is technically not compliant with OSHA regulations, however, OSHA recognizes that there is little to any risk to the employee. Therefore, OSHA has noted that they would issue a de minimus violation for this. For this type of violation, a citation is not issued. Instead, it is discussed verbally between the compliance officer and the company in violation and a note is made in the inspection file.
(up to $7,000 per violation/up to $12,500 per violation)
This classification is reserved for violations that do not pose an immediate physical threat to your employees. In other words, if you are in violation of a regulation such as being unable to provide proper recordkeeping documents or some instances of improper storage of materials, you could be issued an other-than-serious citation. There is much flexibility with the dollar amount at which OSHA will set this fine. Sometimes an other-than-serious will be accompanied by no penalty at all.
($7,000/$12,500 per violation)
Serious violations are just like they sound. With these types of violations there is significant chance of injury or death. Serious violations can be assessed when companies should have known of a hazard but didn’t, or insufficiently protected their employees. OSHA must assess $7000 per violation ($12,500 after August 1 of this year), but can adjust for a number of factors including company size. A situation where an employee has been provided insufficient fall protection equipment could be cited as a Serious violation.
(up to $70,000 per violation/up to $125,000 per violation)
If Serious is serious, then Willful is extremely serious. This classification is when somebody intentionally violates OSHA regulations or knowingly and willingly puts their employees in harm’s way. In the event of a fatality, this becomes a criminal situation. Perhaps a company has had people injured in scaffold collapses due to poor construction and continues to put their employees on that bad scaffolding. This could earn them a Willful violation. In a fatal situation, the fines come with a minimum of $250,000 for an individual and $500,000 for a corporation, as well as possible jail time of 6 months (double if it is a second conviction).
This is a violation of an OSHA regulation for which the company has already been issued a citation within the last three years (unless that citation is currently under appeal). Understand that this does not have to be at the same location or even the same state, so it is in your best interest, as a company, to ensure you are communicating the results of an OSHA inspection and all lessons learned between all offices/projects within your company.
Failure to Abate
When OSHA issues you a citation, they give you a date by which you must abate it. Failure to do so could result in a penalty of $7,000 for each day you fail to abate the violation.
Falsifying Records – OSHA can bring a criminal fine of $10,000, up to 6 months in jail, or both.
Violating Posting Requirements - $7,000
Assaulting a Compliance Officer (or otherwise Resisting, Opposing, Intimidating or Interfering with) – This is a criminal offense. An offender could be fined up to $5,000 and face up to 3 years in prison.
As they say, “an ounce of prevention is worth a pound of cure.” Do everything you can to keep your workers safe and stay compliant so that you will not need to know the difference between the various citations. But, if you find yourself facing one (or many) don’t be afraid to reach out for help. The citation/abatement problem can be a minefield for those unfamiliar with the process and a consultant can help you navigate it safely.
Recently, we posted an article on the common hazards found during rooftop HVAC work. In it, we stated, “Routes of travel that take you past skylights or near the edge of the roof have now exposed you to fall hazards.” This is not an empty warning. Skylights are a hazard often overlooked during rooftop work, especially in the planning phase. If they’re thought about at all, it’s usually when a worker is already on the roof trying to figure out how they can possibly stay away from them. It doesn’t take more than a cursory search on the internet to come up with a recent article in which a worker lost his life from a fall through a skylight.
In this particular instance, a 39 year-old HVAC worker lost his life after falling through an unprotected skylight. He had been attempting to free a saw blade that was stuck in the metal decking when he lost his balance. The fall was 15’ to the concrete pad below.
There are a number of things to take away from this tragedy:
- Age, Health, and Physical Condition often mean nothing when it comes to a fall. 39-years-old. Sure, if somebody fell and survived, a fit, healthier person might recover more quickly, but falls often don’t get that far. The sheer force on the body or a blow to the head can cause death or irreparable damage on impact. In this case, irreparable damage was caused and this young man later succumbed to the injuries he sustained.
- “I have good balance,” means nothing. I’ve heard this before: “I’m not going to fall, I have good balance.” Unfortunately, just about everybody who has ever died in a fall felt that way. I guarantee you, very few – if any – thought, “Hey, I’m going to die. Well, time to get to work.” It doesn’t take much. Just this past winter a building owner was blown off the edge of the roof after he went up there to check on damage after a storm. You could have a bout of low or high blood sugar. Or you could simply stand up too quickly and get a “head rush.” The point is, in the world of safety we have to plan for the unexpected and even the unlikely.
- A properly protected skylight is as rare as a Sumatran Rhinoceros. Okay, that’s a bit of an exaggeration, but not by far. The vast majority of skylights you will encounter are either completely unprotected or are protected by a cage that would do nothing but accompany you on your fall. These cages are often in place to protect the skylight from damage, not support a falling human being. Be aware of this, because a false sense of security can be more dangerous than no protection at all.
- It doesn’t take a huge fall. Yes, 15’ is not an insignificant distance, but it may not be a distance people would automatically associate with a death. The truth of the matter is, you could fall less than 6’ feet and die if you fell the right way, so it shouldn’t come as a surprise to anyone that 15’ proved fatal in this case. Generally, there is no safe height to work at. If you fall, an injury – at the very least – is almost guaranteed.
Without a doubt, the workers in question went on the roof that day expecting to do some work, finish the job, and go home. For one young man, that was definitely not the case. What’s worse is that through the investigation, OSHA determined it was appropriate to issue the contractor a willful citation – meaning they knew about the hazard and failed to protect their employees. This incident was preventable – this death was preventable. Don’t overlook skylights as a hazard that could cost one of your employees their life.