Archive for June, 2011

Against the Grain: OSHA Puts Bin Operators On Notice

Wednesday, June 8th, 2011

As we noted in a blog earlier this year, the number of fatalities in grain bins reached record levels in 2010. There were 51 grain bin accidents last year, up from 38 in 2009 and the most since tracking began in 1978. Twenty-five people died, and five of them were children under age 16. The previous record for grain bin accidents was 42 in 1993. In response, OSHA has developed an explicit program to improve safety in grain bins. In doing so, they have increased the pressure on bin operators to operate safely. The stakes have been raised beyond even the robust fines that OSHA routinely hands out for violations.
As an example of the new program in action, OSHA has cited Lakeland Feed and Supply in Hamilton, Montana, for exposing workers to grain bin machine guarding and fall hazards, along with other safety and health hazards. At this point the fines total $122,500, but this might change after corrective actions and negotiations.
In detailing the serious violations, OSHA paints the picture of a hazard-filled environment that may well reflect the day-to-day operations of many grain bins across the country:

…Platforms missing guarding; no landing platform on a ladder; unguarded shafts, pulleys, chains and sprockets; the lack of an emergency evacuation plan and no fire alarm system; employees walking on grain in the bins; high levels of potentially explosive dust; the lack of a housekeeping program; not locking out augers when employees enter the bins; exposed live electrical lines; improper electrical wiring for high dust areas; and employees not trained on the hazards and chemicals associated with their work.

Not Exactly Junk Mail
As part of the grain bin initiative, OSHA has written to operators across the country, detailing specific steps to be taken to prevent accidents when workers enter storage bins. These steps include:

Turn off and lock out all powered equipment associated with the bin, including augers used to help move the grain, so that the grain is not being emptied or moving out or into the bin. Standing on moving grain is deadly; the grain can act like ‘quicksand’ and bury a worker in seconds. Moving grain out of a bin while a worker is in the bin creates a suction that can pull the workers into the grain in seconds.

Prohibit walking down grain and similar practices where an employee walks on grain to make it flow.

Provide all employees a body harness with a lifeline, or a boatswains chair, and ensure that it is secured prior to the employee entering the bin.
Provide an observer stationed outside the bin or silo being entered by an employee. Ensure the observer is equipped to provide assistance and that their only task is to continuously track the employee in the bin. Prohibit workers from entry into bins or silos underneath a bridging condition, or where a build-up of grain products on the sides could fall and bury them.
Test the air within a bin or silo prior to entry for the presence of combustible and toxic gases, and to determine if there is sufficient oxygen.
Ensure a permit is issued for each instance a worker enters a bin or silo, certifying that the precautions listed above have been implemented.

On Notice
Bin operators are on notice that the above safety procedures must be in place. By providing this unambiguous and highly detailed list, OSHA is saying, in effect, “these are the standards. Nothing less is acceptable.”
Why does this matter? Attorneys for workers injured in storage bins will review the details of any and all accidents. Where the above standards have not been met – and they are not easy to meet! – these attorneys may aggressively pursue increased sanctions against employers. In many states, injuries due to the “wilful intent” of the employer result in higher indemnity payments. In the event of serious injuries or fatalities, attorneys may attempt to pierce the “exclusive remedy” shield of workers comp and secure substantially higher benefits due to employer “negligence”.
In other words, OSHA may have raised the stakes for grain bin operators above the traditional “no fault” level. While there is nothing radically new in the required safety procedures, the fact that OSHA has presented a definitive list means that employers are accountable for each and every one of these procedures. As is customary, violations will result in heavy fines. But in addition to the fines, bin operators may be at risk for exposures well beyond the “usual and customary” comp benefits.
The working conditions in grain bins are extremely challenging. There are critical time pressures, complex mechanical issues, weather concerns and at times, a shortage of trained labor. Teenagers -all too frequently the victims in bin accidents – may or may not take safety precautions seriously. If life on the farm is difficult, life in the bins may be even harder. When it comes to safety and the protection of the people doing the work, OSHA’s sympathies are with the workers. In this environment, when serious accidents occur, employers will be judged by a single criteria: did they follow the OSHA book on grain bin safety? If not, bin operators are likely to pay, pay and pay again.

5 most dangerous jobs for teens & resources for keeping young workers safe

Tuesday, June 7th, 2011

Every year as summer approaches and kids join the work force, many for the first time, the National Consumer League (NCL) offers its updated list of the 5 most dangerous jobs for teens, along with excellent advice for parents and teens on keeping the work experience safe. In 2011, their picks for the most dangerous teen jobs are:

  • Agriculture: Harvesting Crops and Using Machinery
  • Construction and Height Work
  • Traveling Youth Sales Crews
  • Outside Helper: Landscaping, Groundskeeping, and Lawn Service
  • Driver/Operator: Forklifts, Tractors, and ATV’s

The NCL notes that the five worst jobs for teens are not ranked in order. They earn their place on the list because they all share higher than normal injury or fatality rates. If you are an employer who hires teens, a parent with working age teens, or a teen workers, please take the time to look at the excellent report that the NCL has compiled.
We’ve compiled some additional resources for teen safety. While many are appropriate for all groups, we’ve sorted them by primary relevance for employers, teens, and parents.
Resources for employers
Employers need to take particular care with young workers. It’s in the teens best interest and it is in every employer’s best interests as well: According to HR Daily Advisor, “A recent DOL decision assessed penalties of over $277 thousand against movie theaters for employing youths in dangerous jobs and for working them illegally long hours. Have summer hiring plans? Better review youth hiring rules.” The site offers two tip sheets for employers:
Summer Hiring? Watch for Tricky Child Labor Laws and Summer Jobs for Kids–Many Restrictions on Duties and Hours
Interstate Labor Standards Association – an organization of state labor department officials. Find your state contacts and get information on Child Labor Laws.
5 Leadership Lessons: What You Need to Know about Developing Teen Leadership
OSHA: Young Workers: Employers
NIOSH: Young Worker Safety & Health
Washington’s Department of Labor & Industries: Youth Job Safety Resources
National Children’s Center for Rural and Agricultural Health and Safety
Iowa: Iowa Safe Youth @ Work
DOL: Yout Rules: for Employers
For teen workers
American Society of Safety Engineers: Target Teen Safety Tool Kit, including the The ASSE Interactive Zombie Game
OSHA: Young Workers – site includes a variety of safety videos for teen workers, as well as resources
OSHA Young Worker Summer Job Safety
Construction
Farmwork
Landscaping
Lifeguarding
Parks & Recreation
Restaurants
Safe Driving
DOL: Youth Rules: for Teens
Farm Safety 4 Just Kids
California: Young Workers
Canada: Passport to Safety
CCOHS: Young Workers Zone!
CDC: Are You a Working Teen? What you should know about safety and health on the job
CDC: ¿Eres un Joven que Trabaja? Cosas que Debes Saber sobre la Seguridad y la Salud en el Trabajo
Parents
KidsHealth: Making Sure Your Teen’s Job is Safe
DOL: Youth Rules: for Parents
OSHA: Young Workers – Parents
DOL: Youth & Labor

Annals of Disability: A Bridgeworker with a Fear of Heights

Monday, June 6th, 2011

Darrell Miller worked for the Illinois Department of Transportation (IDOT) as part of a crew that maintained bridges. He worked without any problems for five years, but then encountered some difficulty with the job related to a fear of heights. In the most dramatic event, he and another crew member had to “go over the edge” of a bridge over the Mississippi River to change the navigation light bulbs directly above the river. The court describes the incident:

Miller had to climb down a ladder on the side of the bridge to reach the station that held the light fixtures. Some of the stations would have required him to stand on a bridge beam while wearing a lifeline. When Miller attempted to change a bulb that would have required him to stand on a bridge beam, he was unable to complete the task. He suffered a panic attack and was taken by ambulance to a hospital. That was the first, last, and only time Miller was unable to complete an assigned task because of his fear of heights.

Subsequent to treatment for this panic attack, Miller was diagnosed with acrophobia, a fear of heights. Following a series of incidents where his requests for accommodation were rejected, he was fired.
Given the bare outline of what took place, it would appear that the employer was within its rights to terminate Miller. He could not perform some “essential” job functions. In fact, a lower court dismissed Miller’s claim of discrimination, granting summary judgment for the IDOT. However, the 7th Federal District Court took the time to examine not just Darrell Miller, but the crew of which he was part. Their thoughtful and detailed ruling, from which we quote at some length, leads to an interesting and perhaps counter-intuitive conclusion.
The Devil in the Details
The Court noted that not all of the tasks associated with the job involved heights:

As a highway maintainer assigned to a bridge crew, Miller was responsible for a variety of tasks, many of which could be performed from the ground. Those tasks included operating and repairing maintenance vehicles and equipment, including trucks, pavement marking equipment, tractors, mowers, snow plows, and jack hammers; maintaining large culverts, abutments, guardrails, and drainage installations; spreading salt, sand, gravel, and asphalt; directing traffic during maintenance operations; cutting grass, weeds, and brush; repairing signs and digging post holes; cleaning and maintaining the crew’s headquarters; disposing of trash and highway debris; and record-keeping.

In addition, Miller was able to perform most, if not all, of the job:

From the outset of his employment, Miller had occasional difficulty working from heights, particularly when he worked in an unsecured environment. When he began work he had not been formally diagnosed with acrophobia, but Miller informed IDOT and the lead worker of his bridge team, Steve Maurizio, that he had a fear of some heights and that there were a few tasks that he would not be able to do. Specifically, he informed Maurizio that he would not be able to “walk a bridge beam.” In spite of his fear, Miller was able to perform work in an elevated, hydraulically lifted “snooper bucket” at heights of up to 80 feet, and he was able to crawl on the arch of a bridge on a catwalk. He estimated that his fear would be triggered and he would have problems with less than three percent of his job description, but even then he was able to complete his assigned tasks on all but one occasion.

Finally, the court observed that there were a variety of “reasonable accommodations” afforded different members of the crew:

Until early 2006, IDOT informally accommodated Miller by allowing other members of his team to handle those tasks for him, just as other team members’ conditions or limitations were accommodated. For example, Maurizio was unable to weld. Another co-worker refused to ride in the snooper bucket, was not required to climb the arches of an interstate bridge linking Illinois to Kentucky, was unable to spray bridges because of his allergies, was not required to mow the yard, and was not required to rake patching debris. Other crew members would swap assignments as needed to enable the crew to complete those tasks. In short, the evidence would allow a jury to find that the team worked effectively as a team, taking advantage of each member’s abilities and accommodating each member’s limitations.

Essential Functions, Reasonable Accommodations
Then the court examined the crux of the case: was Miller able to perform the essential functions of the job, with or without accommodation:

We are confident that some high work in exposed or extreme positions is an essential function of the bridge crew as a whole. IDOT would have us take that point a step further to find that any individual assigned to the bridge crew had to be able to perform each and every task of the entire bridge crew. That would require finding that every task required of the bridge crew as a whole was an essential task of each bridge crew member. On this record, we cannot make that finding as a matter of law. Plaintiff has come forward with substantial evidence showing that his bridge crew did not actually work that way. The bridge crew worked as a team. No one person was assigned permanently to any one task. Although individual members of the team did various tasks as needed, there was no requirement that the bridge crew members rotate from task to task in an organized, routine fashion, such that it was necessary for any one member of the bridge crew to be able to do every task of the bridge crew as a whole.

In a footnote, the court tackles the unlikely possibility that an entire crew might suffer from acrophobia:

We recognize that if most or all members of a bridge crew had acrophobia like Miller’s, the crew could not perform all of its essential duties. If and when such an extreme case might arise, we are confident that the law would accommodate an employer’s need to get its work done. In this case, however, the evidence showing that plaintiff had actually been accommodated as he requested shows that the employer is not entitled to summary judgment on this theory.

The 7th District Court’s reasoning is at once both compelling and intriguing. Miller, as a member of the crew, was able to do enough of the job to allow the team to proceed unhindered and unimpeded. They accommodated Miller – and his co-workers – routinely in the course of determining which crew members were assigned to specific tasks. Reasonable accommodation for everyone was an ongoing part of the job. Thus, when confronted with a diagnosis that appears to preclude bridge work, the court concluded that accommodating Miller was not only reasonable, but that IDOT had been doing it all along.
The purpose of the ADA is to welcome and sustain people with disabilities in the workplace. Conventional thinking all too often concludes that people who appear to be disabled, or who actually are disabled, cannot do the job. Can a person with a fear of heights work on bridges? In these specific circumstances, yes, he can.

Florida: Drug Test Everyone!

Thursday, June 2nd, 2011

Governor Rick Scott has issued Executive Order Number 11-58 compelling all state agencies under his control to implement a comprehensive drug testing program: all job applicants must undergo pre-employment testing. All current employees – regardless of what they do – must be randomly tested every quarter. Because drugs stay in the body for hours and even days after they are used, the governor is attempting to control every waking minute of the state workforce. Not even commercial drivers are subject to such stringent monitoring.
There is no question that drug testing can play an important role in a comprehensive safety program. For workers whose jobs put themselves or others at risk, random testing can be smart policy. For employers struggling with a rampant drug culture, drug testing often makes sense. [I remember discussing this issue at a workers comp seminar some years ago. The owner of a roofing company said, “I could never implement drug testing. Half my guys would fail!” (I made an immediate note to alert the underwriting team.)]
Even as we acknowledge that drug testing is appropriate under certain circumstances, we must recognize its limitations. Testing science itself, while significantly more effective than it was a decade ago, is not 100 percent reliable. The producing and subsequent custody of urine samples is at best embarrassing and at worst an invasion of privacy. Drug testing does send a message, but there are times and circumstances – such as now in Florida state government – when this message is demoralizing and counter-productive.
Within weeks of the issuance of the executive order, the ACLU sued to put a stop to the program.
Ideology and Policy
The testing of all employees, without even considering job function or safety exposure, crosses the line between best practice and rigid ideology. This policy does not stem from “business necessity” nor does it take into account individual freedom and the right to privacy. Using the governor’s logic, you could argue that everyone in America should, for one reason or another, be tested for illegal drugs. This is bad policy and, to put it bluntly, unAmerican. Here’s hoping the courts toss out this executive order and restore some light to the Sunshine state.

Cavalcade of Risk & other news from the blogosphere

Wednesday, June 1st, 2011

Happy birthday, Cavalcade of Risk! – Russell Chatswood hosts the Fifth Anniversary Edition of Cavalcade of Risk – check it out. Russell is a New Zealander and among the Cavalcade’s posts is an update on the Christchurch earthquake claims from a report issued by New Zealand’s Investment Savings and Insurance Association (ISI).
New to our blogrollDePaolo’s Work Comp Blog – by industry veteran Dave DePaolo, founder and CEO of WorkCompCentral.
When the bears win – In a post at Comp Time today, Roberto Ceniceros reports on a Utah appeals court ruling that upheld benefits for a light-duty employee who was fired for sending porno to colleagues via email. In citing the ruling, Ceniceros quotes The Stranger in the The Big Lebowski who said, “Sometimes you eat the bear, and sometimes, well, he eats you.” That is our nomination for our motto of the week.
Zombie style at the CDC – Have trouble getting your message heard by employers and employees? Maybe you need a new, attention-getting spin. Consumer Insurance Blog posts about how the CDC highlighted the importance of disaster and emergency planning by repackaging it as Preparedness 101: Zombie Apocalypse. With this packaging, they went from a few thousand page views for normal posts to more than 1.2 million over the course a few days.
Cell phones & brain cancer – In reaction to the recent World Health Organization warnings about cancer and cell phones, Merril Goozner posts about the role that conflicted science plays. Also see Gary Schwitzer’s post: News release precedes release of evidence on new cell phone/brain cancer warning.
ADA Amendments Act – The final regulations issued by the EEOC to implement the ADA Amendments Act of 2008 became effective on May 24. The new regulations feature 9 “Rules of Construction” to help employers determine whether an impairment substantially limits a major life activity. HR Daily Advisor offers a pair of posts to help employers plan for the changes: ADAAA Effective Tomorrow–Ready for Its 9 Rules of Construction? and ADAAA Effective Today–Steps Employers Should Take.
Cool tool – Objects falling from a height are a serious safety hazard – that’s why anyone working at a height should secure their tools. Tethers are a good way to do this. Hammerhead Industries offers a one page reference sheet: Tool Tether Guide (PDF)
Bus safety – At Risk Management Monitor, Jared Wade brings the news of another fatal bus crash which claimed the lives of 4 and injured more than 50. Driver fatigue is cited as the cause of the crash. Wade cites this as another instance highlighting the industry’s lack of oversight, and posts about other recent coverage on bus safety. He notes that there have been two stalled-in-Congress bills that have attempted to impose greater regulations: the Motor Coach Enhanced Safety Act and the Bus Uniform Standards and Enhanced Safety (BUSES) Act.
OSHA fines – from The Safety Blog, the Top 10 fines for construction companies. “In total in the 2010 fiscal year OSHA inspected 16,473 small construction companies and handed out 50,630 citations. These citations cost employers more than $46 million or an average of about $900 a citation.”