Posts Tagged ‘OSHA’

OSHA under President Trump: early signs

Wednesday, January 25th, 2017

We’re still awaiting an appointment to the Department of Labor under the Trump administration, so we don’t expect an Occupational Safety and Health Administration (OSHA) director to be named until after that. Right now, a hearing for the controversial Andrew Puzder as secretary of labor is scheduled for February 2. Part of the controversy related to the fast-food CEO revolves around numerous civil rights suits that his company has logged.

In the National Safety Council’s Safety + Health Tom Musick reports that legal experts are predicting significant changes for worker safety regulation under the new administration in his article OSHA under Trump: A closer look.

Here’s a summary of the article’s key points:

  • Labor-law experts predict that OSHA will move away from an enforcement-based strategy and toward compliance assistance and cooperative programs for employers.
  • OSHA’s funding could decrease, and the way it spends its funds also could change if Trump limits the agency’s enforcement budget.
  • Recent regulations such as the injury and illness recordkeeping rule, the silica rule and the so-called “blacklisting rule” all could be in jeopardy under the Trump administration.

For another take at the crystal ball, Russell Carr has issued two in three-part series of articles on potential changes at EHS Today. Carr comes from the perspective of an owner of an environmental, health and safety consulting business.

In looking at changes that may be in store for OSHA and other regulatory agencies, it’s instructive to look at the broader context of some steps that have been taken early in the new administration.

Hiring freeze

On his first day in office, President Trump issued a hiring freeze on non-military federal employees and, at least for some departments, on grants and contracts.

“President Donald Trump’s hiring freeze will last only as long as it takes his administration to come up with an alternative attrition plan, according to a memorandum released by the White House Monday, and could provide broad exemptions for agency leaders.

Trump said his hiring moratorium would “be applied across the board in the executive branch” and apply to any positions vacant as of Jan. 22. It would bar agencies from creating new positions. Agency heads can exempt positions they deem “necessary to meet national security or public safety responsibilities.”

The hiring freeze is expected to be a precursor to federal job cuts of as much as 20% in some departments and was issued to counter “the dramatic expansion of the federal workforce in recent years.” An article at Government Executive points out that there has been no federal workforce expansion and that “employment by the federal government as share of all US employment is relatively low compared to most of the last 70 years.”

Opponents to the freeze point to several potential unintended consequences: Trump’s Federal Hiring Freeze May Kill Hundreds of Jobs for Nurses, Scientists and Engineers

Unions and veterans groups say the federal hiring freeze would make the government less efficient, and make it harder for the US military personnel to find jobs when they leave the service. (About a third of all federal hires are military veterans, although if they’re working security positions, for example, they may not be affected).

The freeze could also take off the table thousands of well-paying jobs for US citizens with higher education and specific skills.

Federal employees have other reasons to feel pressure, among them the recent reinstatement of the Holman Rule: House Republicans revive obscure rule that allows them to slash the pay of individual federal workers to $1:

The Holman Rule, named after an Indiana congressman who devised it in 1876, empowers any member of Congress to propose amending an appropriations bill to single out a government employee or cut a specific program.

The use of the rule would not be simple; a majority of the House and the Senate would still have to approve any such amendment. At the same time, opponents and supporters agree that the work of 2.1 million civil servants, designed to be insulated from politics, is now vulnerable to the whims of elected officials.

Information lockdown – temporary or a sign of things to come?

There’s always a level of anxiety in the federal workforce when a new administration takes the reins, but one other issue has been causing a level of discomfort among employees. Numerous news reports reveal an information crackdown on staff in various federal agencies, from the the Environmental Protection Agency to Departments of Agriculture, Health & Human Services, and the Interior. In its article Trump clamps down on federal agencies, The Hill reports:

It’s not unusual for incoming administrations to seek control over agency communications, especially at the outset, when Cabinet secretaries aren’t in place.

But experts on the federal workforce say they have never seen a White House take the type of steps Trump’s administration has to curb public communications.

Restrictions are reported to include press releases, photos, tweets, speaking engagements, fact sheets, news feeds, and more. See a related story at Politico: Information lockdown hits Trump’s federal agencies. Hopefully, this will be short-term in nature, but one that we will be watching – by early indicators, it doesn’t seem as though an open “sunlight” approach to communications will be a core value of this administration.  if we were putting money on it, we’d bet that it’s just a matter of time until OSHA’s recordkeeping rule is toast, particularly in light of pending lawsuits challenging the rule and Trump’s recent promise to roll back regulations by somewhere int he order of 70-80%.

See our prior post:  Reading the tea leaves: The Trump administration and OSHA

 

Reading the tea leaves: The Trump administration and OSHA

Wednesday, November 30th, 2016

depositphotos_81825950_s-2015

Employers are in a state of limbo between one presidential administration and another, trying to intuit the potential impact as potential names of candidates for the  cabinet and key administrative posts are floated, debated and named. Much is still in the realm of speculation.

One thing is becoming clear: Despite the ambiguity that Trump’s recent comments about possibly preserving some parts of Obamacare, it’s clearly on the chopping block. Any doubts were laid to rest in naming Representative Tom Price of Georgia as the secretary of Health and Human Services. An orthopedic surgeon, Price is an ardent foe of the ACA. He is likely to set his sights on Medicare and Medicaid,  too.

But what of other workplace issues? A key indicator will be naming a prospective Secretary for the Department of Labor. Several names have been floated, but as of this writing, no definitive pick has been named. PA congressman Lou Barletta has been cited by many as leading the pack of those under consideration – there are some reports that he has been offered the position, but no confirmation yet. Other possible contenders include Andy Puzder, CEO of CKE Restaurants (parent company of Carl’s Jr. and Hardee’s) and Victoria Lipnic, a commissioner on the Equal Employment and Opportunities Commission and former assistant labor secretary under George W. Bush. Wisconsin Governor Scott Walker’s name has also been raised by some, a selection that would be chilling to labor unions.

At EHS Today, Sandy Smith offers a not-to-be-missed insider view of Transitioning to a Trump Administration: What It Could Mean for the Department of Labor and OSHA.

Her article offers informed perspective by Former Assistant Secretary of Labor Edwin G. Foulke Jr., who spearheaded OSHA under George W. Bush. He also was the chair of Occupational Safety and Health Review Commission (OSHRC) during the transition from George H. Bush to Bill Clinton.

Foulke talks about the immediate process, offering a detailed look at the steps and timeline involved in the transition. He also offers his thoughts on what labor and OSHA issues he expects that the Trump administration will revisit. Here are the items he lists, but click through for the details.

  • Walking-Working Surfaces Standard
  • Respirable Silica Standard
  • Recording and Reporting Occupational Injuries and Illnesses
  • Whistleblower Statutes
  • Increased OSHA Penalties
  • OSHA Enforcement
  • Non-Company Personnel Participation in OSHA Inspections
  • Restroom Access for Transgender Workers
  • Compliance Assistance
  • Fair Pay and Safe Workplaces
  • The Occupational Safety and Health Review Commission

For another take on this, labor and employment law attorney Mark S. Kittaka also looks at Trump’s Potential Impact on OSHA in an article in the National Law Review. Kittaka rehashes some of Trump’s stated priorities and notes that,

“Even without changing a single regulation, Trump could simply limit OSHA’s enforcement ability by cutting their budget. This was a tactic used by President Ronald Reagan and with a Republican majority in both the House and Senate, this is a distinct possibility.”

He identifies the following areas as likely to come under scrutiny:

  • Electronic Recordkeeping/Non-Discrimination Provisions
  • Recordkeeping as a Continuing Violation
  • Silica
  • Interpretation Letters

In other news, CNN reports that Trump will tap billionaire Wilbur Ross for Commerce secretary, As the administration’s chief business advocate, he’s the type of appointment Trump promised: a non-politican executive from the business community. Ross would be expected to help Trump reshape global trade and revive steel and coal, both industries in which he has experience.

But in coal industry, there were some problems. According to CNN:

Ross’s foray into the coal industry, however, ran into trouble in January 2006 when 12 miners were killed after an explosion at the Sago Mine in West Virginia. His company, the International Coal Group, had taken over the mine a couple months earlier.

According to federal reports, the mine had recorded 96 safety violations in 2005 that were deemed “serious and substantial.” The mine was fined nearly $134,000, an amount later reduced in court.

Read another profile of Ross from our go-to coal industry expert, reporter Ken Ward Jr., who speculated about a potential Ross appointment on his Coal Tattoo blog earlier in the month. Ward notes

“It is worth pointing out that if he got either the Commerce or Treasury slot, Ross would not be in charge of coal mine safety and health regulation for the Trump administration. Folks who are concerned about those issues would obviously be better off watching to see who President-elect Trump makes Secretary of Labor — and then who exactly is chosen to by Assistant Secretary of Labor for Mine Safety and Health.”

OSHA penalties jump 78% this month

Wednesday, August 17th, 2016

Beginning this month, the Department of Labor (DOL) has increased the maximum penalties associated with violations of The Occupational Safety and Health Administration (OSHA) by 78%, the first such increase since 1990. Any citations issued by OSHA on or after August 1, 2016  will be subject to the new penalties if the related violations occurred after November 2, 2015. In addition, OSHA will adjust penalties to inflation annually, but will have a cap of 150 percent of the existing penalty amount.

Here’s a summary of the old vs the new penalties

OSHA-violations

The increase in penalties is not limited to OSHA; This is part of a sweeping modernization that passed in 2015: The Federal Civil Penalties Inflation Adjustment Act. Here’s a Fact Sheet for Inflation Adjustment Act Interim Final Rules.

In addition to OSHA, other penalty increases will affect:

  • Employee Benefits Security Administration (EBSA)
  • Mine Safety and Health Administration (MSHA)
  • Office of Workers’ Compensation Programs (OCWP)
  • Wage and Hour Division (WHD)

The US Department of Labor Blog talks about how the Inflation Adjustment Act was intended to strengthen the deterrent effect of penalties. In The Benefits of Penalties, Sharon Block notes that penalties had not been raised since a gallon of gas was $1.20 and a first class stamp was 25 cents.

“Adjusting our penalties can lead to significant benefits for workers and responsible employers who will have a more level playing field when competing with those who try to gain a competitive advantage by cutting corners on safety and other basic protections for American workers. As always, we at the Labor Department define success as encouraging employers to comply with the law, not by the amount of penalties we assess, so we stand ready to continue to provide technical assistance to all employers who want to do the right thing.”

This is sure to raise some consternation among the nation’s employers, particularly following the OSHA’s controversial new reporting rules. It would appear the the DOL is serious about putting some teeth in enforcement programs designed to protect workers.

Unfortunately, despite the steeper fines, the deterrence factor has historically been mitigated by the all-too-frequent subsequent slashing of fines after they have been levied. See this 2013 NPR Report: Enforcement Of Penalties Weak In Grain Bin Deaths, in which levied fines were negotiated down by 90% or more – a not unusual practice. These fines may be steep to small employers, but to large national, they are a cost of doing business.

BERKES: Employers have the right to challenge and negotiate citations and fines. And OSHA routinely relents. Those major fines – over a hundred grand – they dropped 80 percent of the time, according to an analysis of OSHA enforcement by NPR and the Center for Public Integrity. The agency discount ranged from 40 to 97 percent.

In all the grain deaths we identified, OSHA fines were cut on average more than half. This, Michaels suggests, is part of the process.

MICHAELS: We do everything we can within the current regulatory framework. We look at the individual characteristics of the case, the characteristics of the employer. We don’t think reducing a fine to, you know, $700,000 or $500,000 or $200,000 is going easy on this industry.

BERKES: But given the persistent death toll, it doesn’t seem fines are providing the deterrent effect they’re supposed to. As for criminal prosecutions.

Related resources

 

It’s Been A Bumpy Ride Since 1972

Tuesday, June 14th, 2016

In its report to President Nixon, the 1972 National Commission on State Workmen’s Compensation Laws, created by the Occupational Safety and Health Act of 1970, concluded that workers’ compensation laws and benefits were vastly disparate among the states. Benefits in one state might be generous, while across the nearest border they’d be parsimonious.

Although Commission members differed on some points, they unanimously agreed parity among the states was highly desirable. They also recognized that to achieve this goal federal preemption as well as federal minimum standards were impractical for two reasons. First, the federal government had not demonstrated it was capable of successfully undertaking such an effort and, second, entrenched vested interests would fight to the death to preserve the status quo (I wonder what the members would say about today’s vested interests’ clawhold on the system?).

Consequently, in its report, the Commission made 84 coverage and benefit recommendations to the states, 19 of which it termed “essential” in order to establish an adequate workers’ compensation law. In the thirty-year period between 1972 and 2002, the states adopted an average of 12.9 of the 19 recommendations, or about 67% of them. The nationwide workers’ compensation crisis of the late 1980s and early 1990s put the brakes on any movement to adopt more of the recommendations.

In the recent past, workers’ compensation reform has percolated again, only this time in the opposite direction. For example, the October, 2015, Propublica/National Public Radio series, echoing back 43 years to 1972, once again threw a stark light on the continuing lack of uniformity in state benefits. In a kind of circle-the-wagons, and if that doesn’t work, head-to-the-bunker reaction, the series was roundly and caustically criticized by members of the workers’ compensation industry. But, as John Adams said in his summation when courageously defending British soldiers following the Boston Massacre, “Facts are stubborn things.” And one, inescapable fact is that in terms of the generosity of workers’ compensation benefits, in 2016 it matters greatly in which state an injury occurs.

Then there’s opt-out. Given the complexity and bureaucracy of the workers’ compensation system, I certainly cannot blame employers for saying, “We want out.” However, if employers are allowed to create their own systems, what happens, as I’ve written before, “down the street, around the corner at Kenny’s Citgo when one of Kenny’s five employees is injured on the job?”

And now, in a little uphill blowback, the Florida Supreme Court has ruled it is unconstitutional to cut off temporary total disability benefits at 104 weeks to a worker who remains totally disabled and unable to work and has not reached maximum medical improvement. This harkens back to the 1972 Commission’s Recommendation 3.17, which said total disability payments should be paid for the duration of the disability without regard for dollar amount or time. It will be interesting indeed to see how Florida deals with this ruling. It is a serious setback for employers.

I have to admit a nationwide lack of uniform benefits makes no sense to me. I just don’t get it. The 1972 Commission also had a remedy for this. It recommended, “that compliance with these recommendations should be evaluated July 1, 1975, and, if necessary, Congress, with no further delay in the effective date, should guarantee compliance.” Well, that never happened did it?

So, where are we?

We’ve advanced some distance, but, as John Burton, the Chair of the 1972 Commission, suggests, if we continue to advance at this rate, the 19 essential recommendations will be law throughout the land sometime in the 23rd century.

As with everything else in business, this all comes down to money.

OSHA’s New Reporting Rule Raising Hackles

Wednesday, June 1st, 2016

OSHA recently released a final rule on injury reporting and electronic recordkeeping that is raising hackles in many quarters – if you aren’t aware of the rule, this post will get you up to speed and will present an overview of the controversy.

The rule requires that certain hazardous industries submit injury and illness data electronically, which will then be shared and publicly accessible online. In addition, the rule strengthens worker protections around reporting. Employers are obligated to inform employees of their reporting rights and must not deter or discourage injury reporting in any way, and may not retaliate against employees for reporting.

Here’s a copy of OSHA’s new rule, which was published on May 12, 2016. Here’s a brief summary excerpt:

OSHA is issuing a final rule to revise its Recording and Reporting Occupational Injuries and Illnesses regulation. The final rule requires employers in certain industries to electronically submit to OSHA injury and illness data that employers are already required to keep under existing OSHA regulations. The frequency and content of these establishment – specific submissions is set out in the final rule and is dependent on the size and industry of the employer. OSHA intends to post the data from these submissions on a publicly accessible Web site. OSHA does not intend to post any information on the Web site that could be used to identify individual employees.

The final rule also amends OSHA’s recordkeeping regulation to update requirements on how employers inform employees to report work-related injuries and illnesses to their employer. The final rule requires employers to inform employees of their right to report work-related injuries and illnesses free from retaliation; clarifies the existing implicit requirement that an employer’s procedure for reporting work-related injuries and illnesses must be reasonable and not deter or discourage employees from reporting; and incorporates the existing statutory prohibition on retaliating against employees for reporting work-related injuries or illnesses. The final rule also amends OSHA’s existing recordkeeping regulation to clarify the rights of employees and their representatives to access the injury and illness records.

Large employers (250+), unless exempt from reporting, are now required to submit data electronically. In addition, high hazard industries with 20-249 employees will also have electronic reporting obligations

Poster for informing employees of their rights

The electronic reporting requirements are in effect as of January 1, 2016. The employee notification and anti-retaliation provisions go into effect on August 10, 2016.

Proponents and opponents of the OSHA rule speak out

OSHA and labor proponents say that the new rule will modernize reporting and offer transparency that fosters safer workplaces.

Just as public disclosure of their kitchens’ sanitary conditions encourages restaurant owners to improve food safety, OSHA expects that public disclosure of work injury data will encourage employers to increase their efforts to prevent work-related injuries and illnesses.

“Since high injury rates are a sign of poor management, no employer wants to be seen publicly as operating a dangerous workplace,” said Assistant Secretary of Labor for Occupational Safety and Health Dr. David Michaels. “Our new reporting requirements will ‘nudge’ employers to prevent worker injuries and illnesses to demonstrate to investors, job seekers, customers and the public that they operate safe and well-managed facilities. Access to injury data will also help OSHA better target our compliance assistance and enforcement resources at establishments where workers are at greatest risk, and enable ‘big data’ researchers to apply their skills to making workplaces safer.”

Most labor unions are proponents of the new rule: Teamsters Applaud New OSHA Rule to Modernize Worker Injury & Illness Report System

The new rule will go a long way in correcting a widespread problem that saw many large employers routinely withholding these reports from their own workers, in violation of OSHA’s current mandate. This will especially help the many workers in non-union companies to get this important information without fear of retaliation by their own supervisors. With this rule, OSHA will move employers into a modern, electronic reporting system to promote accurate and broad public understanding of the dangers in today’s workplaces.

Opponents say that the public posting of injury data constitutes a “public shaming” and that data may be misunderstood or exploited by competitors and other parties. In addition, employers say that the previous recordkeeping process allowed revisions to injury and illness records, a process that may be unavailable now once reported. Some opponents also raise concerns about employee privacy, although OSHA says reported data will not be identifiable by employee.

The following are some initial reports of opponent concerns.

The Hill: OSHA to publicly disclose workplace injuries online

But the National Association of Manufacturers (NAM) accused the Labor Department of “publicly shaming” companies into compliance.

“This administration put a target on nearly every company and manufacturer in the United States,” NAM vice president Rosario Palmieri said in a statement.

“Manufacturers are supportive of regulations aimed at increasing transparency, and we pride ourselves on creating safe workplaces for the men and women who make things in America,” Palmieri said. “However, this regulation will lead to the unfair and unnecessary public shaming of these businesses. This is a misguided attempt at transparency that sacrifices employee and employer privacy.”

Business Insurance: RIMS sounds alarm on latest OSHA injury-reporting rules

Inaccurate safety ratings, reporting redundancies and cyber exposures will result from the new rule on electronic record-keeping of workplace injuries released by the U.S. Occupational Health and Safety Administration that takes effect Jan. 1, 2017, the agency said in a statement.

OSHA’s new rule requiring the publishing of employee injuries can increase litigation against an organization and can also be used against an organization by industry competitors, RIMS said in the release.

The organization is also concerned about the ambiguity of the cause of a workplace injury potentially creating misconceptions about an organization’s workplace safety, the statement said.

RIMS also listed OSHA’s web-based reporting application as an issue because of its additional cyber exposures.

Safety + Health: Critics of OSHA recordkeeping rule air concerns at House hearing

Critics of OSHA’s recently released recordkeeping rule, which would make worker injury and illness data public, voiced their concerns during a May 25 hearing convened by the House Workforce Protections Subcommittee.

The National Law Review: OSHA Electronic Recordkeeping Rule Creates Significant Reporting Requirements, Potential Enforcement Risks

This article summarizes the new rule and offers compliance recommendations for employers. It also raises employer concerns:

The implications of OSHA’s new reporting requirements are significant, as the new rule creates a number of concerns and challenges due to the public disclosure of employer safety data. For one, the OSHA recordkeeping process has always allowed a continuing opportunity to revise injury and illness records with new changes to the reported event. But once the injury and illness data is initially reported and disclosed, it may be difficult for employers to revise this public information. Additionally, the data may be misinterpreted or misrepresented by the media or competitors. Further, employee privacy is a concern. Although OSHA states that it will use software to remove private employee information from the disclosures before posting, the effectiveness of this software remains to be seen. Finally, the cost and resources necessary to implement electronic data collection and maintenance will be significant. OSHA’s financial estimates likely ignore the time and effort required to bring an employer into compliance, especially ones without any electronic collection procedures currently in place.

Construction Equipment: New Electronic OSHA Reporting Requirements Raise Serious Concerns

Before, employers could only be cited by OSHA for not having a workplace illness/injury procedure in place. Now OSHA can cite an employer if the company’s procedure is not ‘reasonable’ or discourages employees from reporting.

Before, OSHA had to wait for an employee to file a whistleblower retaliation claim to investigate the company. Now, OSHA can cite and fine employers directly and demand abatement for alleged retaliation against employees who report workplace injuries and illnesses.

Before, employer reports of injury/illness events were in an open chronological format that allowed updates and changes to the report as needed. Now, because the electronic report will be made public at the initial filing, it may be difficult for employers to revise the report at a later date. This means the first filing will stay on the Internet as it was written and later updates may or may not be easily found. This can lead to either accidental or willful misinterpreted of the information by anyone who has an Internet connection.

We doubt we’ve heard the end of this story so stay tuned.

Do’s and Don’ts of an OSHA Inspection

Wednesday, September 23rd, 2015

A recent news item in WorkersCompensation.com struck us as a cautionary tale of what not to do when OSHA comes to visit: don’t try to hide production lines by turning off the lights and instructing workers to hide and be quiet. Don’t threaten employees.

This reminds us of the poster child of what not to do when OSHA comes to visit, a textbook example: Don’t keep two sets of books.

OSHA inspectors arrive unannounced and an inspection is not something you can reschedule to a more opportune time. It’s important to be ready, to know what will occur, to understand your rights and obligations and to have a plan in place. Shortly after reading about the Nebraska employer, we also found this helpful 5 minute video, Why Are OSHA Inspectors In My Lobby, And What Should I Have Already Done To Be Prepared? Attorneys Neil Brunetz and Mike Mallen from Miller & Martin walk you through being ready for an OSHA inspection.

 

See also: Preparing for an OSHA Inspection, an article by Kyle W. Morriosn in Safety + Health, which includes this handy infographic.

There’s No Fairy Godmother For This Cinderella

Monday, July 13th, 2015

I’d like to make a bet with you. Here it is. I bet you will answer “Yes” to at least one of the following three questions:

  1. Do you know anyone who works as a Personal Care Aide or a Home Health Aide?
  2. Has anyone in your immediate family, now or in the last 10 years, been taken care of by a Personal Care Aide or a Home Health Aide?
  3. Do you personally know anyone who  now or in the last year employed the services of a Personal Care Aide or a Home Health Aide?

I like my odds. According to the Bureau of Labor Statistics, six of the ten fastest growing occupations from 2012 to 2022 will be in the health care industry and numbers two and three on the list are – you guessed it – Personal Care Aides and Home Health Aides, growing by 49% and 48%, respectively, closely following Industrial-Organizational Psychologists, a profession that is expected to grow by 53% during the ten year period.

While Psychologists are projected to have the greatest rate of growth, they’ll only be adding about 900 jobs to the economy. This is dwarfed by the numbers of new jobs for the Aides, 581 thousand and 424 thousand, respectively. Taken together, they’ll be adding more than a million workers to the economy. A hefty number, indeed.

The rate of injury for both of the Aide groups is 2.5 times the rate for all public and private sector workers.¹ You would think that would get somebody’s attention, maybe somebody at OSHA, for example. And, you know what? It did. This from OSHA:

The Occupational Safety and Health Administration (OSHA) announced a new National Emphasis Program (NEP) to focus outreach efforts and inspections on specific hazards in nursing and personal care facilities with high injury and illness rates.

“Nursing and personal care facilities are a growing industry where hazards are known and effective controls are available,” said OSHA Administrator John Henshaw. “The industry also ranks among the highest in terms of injuries and illnesses, with rates about two and a half times (emphasis added) that of all other general industries. By focusing on specific hazards associated with nursing and personal care facilities, we can help bring those rates down.”

Only one problem with that: It was written exactly 13 years ago this month!

Now read this:

Non-fatal injuries to health care workers requiring days away from work are on the rise, according to new data from the Bureau of Labor Statistics released Nov. 9, and OSHA Administrator Dr. David Michaels has vowed to launch a National Emphasis Program on Nursing Home and Residential Care Facilities.

“It is unacceptable that the workers who have dedicated their lives to caring for our loved ones when they are sick are the very same workers who face the highest risk of work-related injury and illness,” said Michaels.

According to BLS, the incidence rate for health care support workers increased 6 percent to 283 cases per 10,000 full-time workers, almost 2.5 times the rate for all private and public sector workers (emphasis added) at 118 cases per 10,000 full-time workers. The rate among nursing aides, orderlies and attendants rose 7 percent, to 489 per 10,000 workers. Additionally, the rate of musculoskeletal disorder cases with days away from work for nursing aides, orderlies and attendants increased 10 percent to a rate of 249 cases per 10,000 workers.

“The rates of injuries and illnesses among hospital and health care workers underscore OSHA’s concern about the safety and health of these workers,” said Michaels.

That was written by OSHA in November, 2011.

A National Emphasis Program is becoming kind of predictable for OSHA. Maybe we’ll see another one around 2020. Until then, or until ever, Personal and Home Health Aides will be the Cinderellas of the health care universe. Except their story won’t have a “happy ever after” ending, and they’ll never get to meet a Prince.²

 

¹ And this rate of injury does not include the thousands of Aides who are hired to take care of Grandpa and Grandma in the home and who are paid minimum wage.

² Paying lip service to this issue goes back at least as far as 1997 when the BLS, using 1994 data, published an Issues Paper, and said this:

Overall, the 1994 injury rate in home
health care services (474 lost workday
cases per 10,000 workers) is about 50
percent higher than the injury rate in
hospitals, the institutional setting from
which many home-care patients are
released, and 70 percent greater than the
national rate.

 

Related: A Living Wage For Caregivers, New York Times, 10 July 2015

 

Two New Major Reports on Workers’ Comp

Wednesday, March 4th, 2015

In what can be nothing other than a coordinated move, both OSHA and ProPublica today released major reports targeting similar workers’ comp issues. ProPublica’s report was co-produced with National Public Radio.
The Demolition of Workers’ Comp
ProPublica’s Michael Grabell and NPR’s Howard Berkes wrote this report, which sledgehammers the workers’ comp industry, specifically insurers, state regulators and the business community. No matter how you feel about it, if you’re a workers’ comp professional, you should read this report.
In their skewering of the industry, Grabell and Berkes point to the gross differences in benefits provided by the states. They ask, “How much is an eye worth?” Then go on to show that it’s worth ten times more in Pennsylvania than it is in Alabama (around $261 thousand compared to $27 thousand – if you’re going to lose an eye, Pennsylvania’s the place to do it).
They note that workers’ comp premiums around the nation have been falling since the early 1990s, something we’ve written about often, and are now at the level of the late 1970s. Moreover, they note that:

Since 2003, legislators in 33 states have passed workers’ comp laws that reduce benefits or make it more difficult for those with certain injuries and diseases to qualify for them. Florida has cut benefits to its most severely disabled workers by 65 percent since 1994.

Despite this, Grabell and Berkes write that business owners clamor for still lower rates and more restrictive benefits in order to keep and attract business.

“That was always the No. 1 issue,” said state Sen. Brian Bingman, the Republican president pro tem of the Oklahoma Senate. “Your workers’ comp rates are way too high.”


Well, in thirty years of working for employers I have yet to meet one who did not think workers’ comp rates were too high – no matter how high or low they were.
Inequality of state workers’ comp benefits is a serious issue, yet one which I don’t see being addressed by anybody anytime soon. Do you?
This piece is thought-provoking and intelligently written. And Grabell and Berkes have heavy-hitter John Burton agreeing with them. Of course, that might have something to do with Dr. Burton’s Quixote-to-the-windmill quest for another workers’ comp national commission.

The recent changes are “unprecedented in the history of workers’ comp,” Burton said in an interview. “I think we’re in a pretty vicious period right now of racing to the bottom.”

I urge all workers’ comp professionals to read this informative piece of investigative journalism.
The OSHA Report
In today’s tag team match, OSHA released Adding Inequality To Injury: The Costs of Failing To Protect Workers Injured On The Job. This is a seriously impressive work.
In a 20 page, well-researched, well-sourced paper, complete with 37 endnotes, the agency takes the baton pass and sounds its own ringing indictment, taking aim at employers who evade workers’ comp responsibilities by misclassifying employees, labeling workers as independent contractors when they’re really employees, outsourcing high-hazard jobs and making heavy use of temp agencies. In this regard, OSHA cites research indicating that workers’ comp covers only 21% of the costs of injuries for these employees, while 50% is borne by them out-of-pocket (Leigh JP, Marcin JP. Workers’ compensation benefits and shifting costs for occupational injury and illness. Journal of Occupational and Environmental Medicine 2012;54:445-450).
One of the report’s more serious charges, among many, is found in this paragraph:

Moreover, only a fraction of injured workers receive any workers’ compensation benefits through state workers’ compensation programs. Several studies have found that fewer than 40 percent of eligible workers apply for any workers’ compensation benefits at all. Indeed, recent BLS-supported analyses that match cases reported to workers’ compensation carriers with those cases recorded by their employer on OSHA logs, treated in emergency rooms or admitted to hospitals, found a sizable proportion of injured workers receive no benefits through the workers’ compensation system. For example, a review of all recordable work-related amputations in Massachusetts found that less than 50 percent of the cases received any workers’ compensation benefits.


Just for a moment, suppose that Grabell and Berkes and whoever wrote the OSHA paper (it’s uncredited except for all those endnotes) are right. Would that mean that all of us, the professionals who labor in the workers’ comp vineyard, have had our collective heads in the sand for lo these many years? Is that possible? Perhaps it is. What would that mean for the future?
Well, here’s a suggestion for all of us. Read the ProPublic/NPR report. Then read the OSHA paper, paying particular attention to those 37 endnotes. Then, perhaps we could begin a conversation about how, while we’re all helping employers and insurers to reduce costs, we could actually deliver the lawful benefits to which all of America’s injured workers are entitled.
There’s an idea.
Hope to see you tomorrow in Boston where we might begin the conversation.

OSHA Update: New reporting requirements, top violations & more

Thursday, October 2nd, 2014

OSHA Expands Mandatory Reporting Requirements to Encompass Individual Employee Hospitalizations, Amputations, and Eye Loss
Jason Markel, Hodgson Russ LLP:
“On September 11, 2014, OSHA adopted a final rule that significantly broadens the mandatory reporting requirements, resulting in an amended Section 1904.39 that becomes effective on January 1, 2015. The amended regulation will require employers not only to report deaths within eight hours as before; it also mandates that employers report to their local OSHA office, subject to limited exceptions, all in-patient hospitalizations of an employee, all amputations, and all eye loss incidents within 24 hours of the event. And, of course, these events must also be recorded on the employer’s OSHA 300 log.”
Related:
Changing Soon: OSHA Requirements for Reporting Fatalities and Severe Injuries
Biz groups ‘alarmed’ by new OSHA rules for workplace accidents
OSHA Will Put Workplace Safety Data Online as ‘Nudge’ to Employers
Other OSHA News
Top 10 OSHA violations in 2014
OSHA targets companies that punish employees for reporting injuries
OSHA’s List of Severe Violators Grows by 23 Percent
There are currently 423 sites in the program. “Launched in 2010, OSHA’s Severe Violator Enforcement Program “concentrates resources on inspecting employers who have demonstrated indifference to their OSH Act obligations by willful, repeated or failure-to-abate violations,” in the words of the agency.”

OSHA: No More Falling Workers

Tuesday, February 25th, 2014

In May 2012, we posted about the excellent Frontline – Pro Publica documentary report on on cell tower worker deaths: The high price for fast phones: Cell tower deaths. Since that time, the issue has gotten worse, not better. In 2013, there were 13 cell tower-related fatalities. In the first two months of 2014, there have already been 4 fatalities related to cell towers.
In response to these deaths, The U.S. Department of Labor’s Occupational Safety and Health Administration is collaborating with the National Association of Tower Erectors and other industry stakeholders to ensure that every communication tower employer understands their responsibility to protect workers performing this high-hazard work. Assistant Secretary of Labor for Occupational Safety and Health David Michaels has issued a warning letter to Communication Tower Industry Employers reiterating these responsibilities.
In addition, OSHA has launched resources to focus on protecting cell tower employees in its No More Falling Workers initiative. It has created a new Web page – Communication Towers – targeting the issues surrounding communication tower work.
Education is great in as far as it goes, which isn’t all that far. The problems that plague the industry and the related deaths revolve around the unrelenting deadlines to complete towers to meet demand and the complex network of contractors and subcontractors that allow the tower owner to shrug off responsibility for any deaths.
Travis Crum of the Charleson Gazette echoes the problems found in the Frontline-Pro Publica report in his reporting about three West Virgina tower-related fatalities earlier this month: Company that owns collapsed Clarksburg cell towers had fatalities before

“These incidents seem likely to continue as cell companies push contractors and their employees to meet rising demand for 4G and 4GLTE data networks, said Randy Gray, a former OSHA inspector from Kentucky.”

“Gray said cellphone companies are racing to replace older 3G networks with 4G, or fourth-generation, networks. This rapid expansion places cell tower climbers at risk, Gray said, who now does private consulting on accidents and fatalities at cell tower sites.”

He also explains why it’s so difficult to hold the cell tower owners/networks responsible:

To make matters worse, Gray said, it’s difficult for OSHA to hold companies such as SBA responsible, because there’s a web of contractors and sub-contractors who often shield them from scrutiny.

OSHA investigators must prove several elements before citing a company, Gray said, one of them being knowledge of potential hazards.

“With the owner of the cell tower not being present at the time of the fatality, it’s hard to prove they had knowledge about what the employees were signing off on,” he said. “So these companies start layering themselves between the people who work on the ground, and this layering, in my opinion, protects them from possibly being cited by OSHA or being involved in OSHA inspections.”

So while it’s great that OSHA is warning employers and putting an emphasis on tower worker safety, it will serious accountability to drive the change.
Related:
Wireless Estimator tracks U.S. tower-related fatalities
13 Cell Tower Maintenance Workers Died on the Job in 2013
Cell tower worker fatalities continue: More than a dozen deaths since 2012
OSHA Urges Tower Employers to Protect Workers After Recent Spate of Fatalities
Cell Tower Deaths Get OSHA’s Attention
West Virginia Firefighter Killed in Secondary Collapse at Cell Phone Tower Rescue, Two Workers Also Dead