Small Business Forum for Occupational Safety and Human Resources Services

At Enhanced Workforce Solutions, our experience has shown that best in class safety and human resources programs have a transforming effect on all businesses, especially small businesses.  What we have also learned is that there is a strong desire among small business owners to establish these programs, yet they may not have the time nor access to resources to make this happen. 

We started EWS to guide small businesses in establishing these game changing programs internally.  Our passion is sharing our knowledge to create a culture that becomes a true competitive advantage.  With education in mind, we started a Facebook page (http://www.facebook.com/#!/pages/EWS-Helping-Small-Businesses-with-Safety-and-Human-Resources/164669770231369) as well as a blog page (www.espros.wordpress.com)  to share information.  Our Facebook page is designed more for questions and answers while our blog page explains important safety and health and human resources topics in greater detail.  As you read through our pages, please feel free to ask questions, and if you would like information on a certain topic, please be sure to submit a request.  And if you really like it, please do not hesitate to “like” us and forward our links to those you feel would benefit from the information.  Lastly, you can always email us your question or topic suggestions at info@ewspros.com.

Cal OSHA Heat Illness Standard Section 3395: What you should know to be compliant.

As we in Southern California move toward the summer season, the weather presents a unique challenge to companies that have employees who work outdoors.  The weather can change frequently, from lows of 60’s to highs in the mid 80’s in just a few days, yet the Cal OSHA heat illness regulation does not change.  The standard takes affect whenever the temperature exceeds 85 degrees Fahrenheit, regardless of which month or season.  California has made this standard one of the top enforcement priorities and as we move closer to summer, you can be certain that Cal OSHA enforcement will conduct sweeps frequently (keep in mind that new regulations have made it easier for Cal OSHA to issue serious violations, see previous blog post). 

The underlying premises of the standards are:  provide hydration and shade for employees, recognize heat illness symptoms, and provide access to first aid.  Our goal in this blog post is to highlight the main elements, but please be sure to read the standard completely (http://www.dir.ca.gov/Title8/3395.html):

• The standard is triggered at 85˚F, which can be measured on site or can be measured by following the daily weather forecast;
• A sufficient amount of water (at least 1 quart per employee per hour) must be supplied at the beginning of the shift, unless the water can be replenished throughout the day.  Note:  This can be conducted by water bottles (i.e. Sparkletts) or by a water jug.  For water bottles, make sure the employees write their names on the bottles, and provide cups for the water jug.  Remember:  Cal OSHA also has hygiene standards;
• Access to shade; at least enough shade to accommodate 25% of the number of employees on the shift, sitting in a normal posture without physical contact with each other;
• Employees are encouraged to take cool down rest periods in the shade if they feel any heat illness symptoms;
• Training:  the most critical element of the program.  Subsection F of the standard outlines the core elements, but this step is essential to the entire program.  Frequently, citations are issued because the employees or supervisors haven’t been trained or do not retain the information.   Frequent, repetitive communication will reinforce the program and go a long way toward compliance and the prevention of citations;
• There are additional high heat standards for temperatures above 95˚F for certain industries;
• Program must be in writing.  If it’s not in writing, then there is no program. 

A note for staffing companies:  it’s imperative that you have a program for your employees and coordinate with your customer. 

Currently, California is the only state that has a heat illness standard.  That being said, Fed OSHA is reviewing the standard and may incorporate as a federal standard, which in turn will affect every state.  Please be sure to develop your program, not only will you be in compliance, but it will prevent injuries and illnesses to your employees.  Please follow the link for additional resources http://www.dir.ca.gov/DOSH/HeatIllnessInfo.html , and as always, please do not hesitate to contact us at safety@ewspros.com with any questions.

AB 2774: How Does a Serious Violation Affect My Company?

In light of the fact that AB 2774 has increased the probability of receiving a serious violation, a valid question is “How can this affect my company?”

The main impact is the most obvious, an increase of serious violations linked to your company and an increase in the cost of fines.  Having serious violations on your company’s history limits your ability to get new work as safety programs are increasingly being used to decide among many competitors.  Further, your company can be labeled as a hazardous employer, which limits your ability to attract top talent.

For instance, we had a customer that came to us because they received two general citations, with a total amount of fines under $500.  They were very upset and nervous, and explained that they had a very large corporation for whom they were performing work and were in the bidding for more work, but these two general violations would remove them from the bidding and jeopardize their current work.  Their customer used the safety program as the determining factor in deciding who would be awarded the work, a trend that is certainly increasing. 

In a previous post we mentioned that Cal OSHA has been prodded by Fed OSHA to look statewide and nationally at a company’s history when issuing repeat violations.  Several serious or repeat violations can escalate future violations to possibly include willful, which substantially increases the costs in addition to other punitive damages.  Regarding AB 2774, the Work Comp Examiner states “ Among the clear, unintended consequences to employers may be a general increase in Section 132A claims – uncovered claims for serious and willful injuries and the potential for jail terms for employers and managers, ….”

This is not a path that most companies want to follow.  So, how do you protect your company?  For the answer, please check back for our next post.  In the interim, please do not hesitate to email any questions to safety@ewspros.com.

AB 2774: 1BY – The ‘15 day letter’ and what to do.

 A section of AB 2774 requires Cal OSHA to send a letter to the company 15 days prior to issuing a serious violation.  This has been a topic of much debate since the bill’s introduction.  Our goal in this blog is to provide additional information, but the ultimate decision depends on the violation/citation and legal advice (if necessary).

The intent of the letter is to provide the company with the opportunity to tell their side of the story and provide any additional information you company may want to share prior to the issuance of the citation.   While the intent is positive, the legalese affects the dynamics of the situation. 

By simplifying the legal terms, there is no consequence during your appeal if your company does not respond to the letter.  If, however, your company does respond to the letter, you are locked in to your story, and any additional information provided during the appeals process will be viewed by the judge as ‘negative inference’, or the validity of the new information is to be questioned.  In other words, if your company responds to the letter but finds additional information during further investigation, the new information will be questioned and possibly dismissed by the judge. 

The question ultimately comes down to a choice between trying to avoid the serious citation (with minimal probability for success) and locking in your story, or appeal the citation and request a reduction in the severity and penalty amount during the process with all, relevant information.  The consensus answer among or legal partners is to forgo the response to the 15 day letter and work on the reduction during the appeals process.  

A word of caution: if you decide to respond to the letter, be very careful in what is written.  While this may seem obvious, in discussions with Cal OSHA inspectors, they have shared their surprise at the high number of companies actually admit the violations when they believe they are defending against them.  One shared that ‘Its almost as they concede the violation, but try and explain they why behind the violation’. 

This bill is still new and much is to be learned.  If you have any questions or are currently faced with the decision of whether or not to fill out the letter, please do not hesitate to contact us. 

As always, please do not hesitate to contact us at safety@ewspros.com with additional questions.

Whether or Not to Hire a Consultant: Link to a Great Article in EHS Today

Please follow the link below for a great article about consulting written by a management advisor!

Thank you..

http://ehstoday.com/safety/management/new-regulations-engage-consultants-0401/

California AB 2774: How it Made it Easier for Cal OSHA to Issue Serious Citations

AB 2774 was incorporated into law on January 1, 2011 and is one of the most significant changes to Cal OSHA in the history of the program.  The major impact is a revision of the requirements for a ‘serious’ violation.

To simplify the discussion, a serious violation requires at least two elements (1) a hazard with the potential to cause a serious injury, and (2) the definition of a serious injury.  Both of these elements were revised in AB 2774.

Hazard with the Potential to cause serious injury

In order to be considered a serious citation, the hazard must have the potential to cause a serious injury.  To make this determination, Cal OSHA must follow certain criteria.  Previously, the criteria required a ‘substantial probability’ that the violating hazard could result in a serious injury.  AB 2774 changed the language to “reasonable probability” that the violation could result in a serious injury.  Basically, prior to AB 2774, Cal OSHA has to prove that ‘50+1%’ of the hazards would result in a serious injury.  Now, ‘1 chance in 1000’ meets the new verbiage, lowering the threshold Cal OSHA must prove for a serious injury. 

What is the definition of a serious injury?

Prior to AB 2774, a Cal OSHA defined a serious injury as an injury or illness is defined as that which (1) results in death, (2) requires hospitalization for more than 24 hours for other than medical observation, (3) involves the “loss of any member of the body”, or (4) results in permanent disfigurement. (Title 8, Calif. Code of Regulations, sec. 342a.) The two most significant changes in AB 2774 are the removal of the timeline (24 hours) for hospitalization and the inclusion of the phrase “ impairment sufficient to cause a part of the body or function of an organ to become permanently and significantly reduced in efficiency on or off the job, such as for example, second degree or worse burns, crushing injuries including internal injuries  even though the skin surface may be intact, respiratory illness, or broken bones”.  The bar is definitely lower. 

Taken together, these significant changes increase the chance that more violations will be classified as serious primarily because the definition has been made easier to both prove and uphold during appeals processes. 

Under the new law, Cal OSHA inspectors will be able to testify and be considered experts on the elements constituting a serious injury.  So, they can cite serious and be considered experts in defending during the appeals process.  A primary defense against a serious violation was to call into question the qualifications of the inspector, citing a lack of knowledge.  Now, as long as their training is current, their qualifications can not be questioned. 

Please check back for subsequent postings on the “15 day letter”, how serious violations can affect your company, and what steps to take to protect your company.

Until then, please do not hesitate to email any questions to safety@ewspros.com.

Safety: Fed OSHA and Cal OSHA – The Relationship and How It Affects Your Company

A recent article titled “Obama’s Budget Does Not Spare Employers” in HR Online (http://www.hreonline.com/HRE/story.jsp?storyId=533332097) shares that in his FY12 budget, the president has tasked an additional $50 million for the Department of Labor budget. OSHA will receive $20 million, with $8 million (41%) going toward enforcement, which is explained in the excerpt form the article: “Ed Foulke, former assistant secretary of labor for OSHA under the recent Bush administration, says the increases may reflect an attempt by the administration to advance its goals via enforcement and rulemaking rather than trying to get new safety legislation through a hostile, Republican-controlled House of Representatives.”

It’s important to note that our president is asking for additional funding in light of the budget deficits, which indicates the emphasis the administration is placing on enforcement.

Understand that OSHA affects state OSHA plans in several ways. A primary method is an annual review of the state OSHA plans. In 2009, highlighted by the number of fatalities in Nevada and a new democratic DOL secretary, a more in depth study of the state programs was conducted. The findings were published in 2010 (https://www.osha.gov/dcsp/osp/efame/index.html ). For California (our home state), some areas of improvement were:

• Cal OSHA needs to ensure it has sufficient staff to provide effective worker protection (currently 44.5 vacancies);

• Cal OSHA must decrease the time between the opening conference and citation issuance, including a more timely verification of hazard abatement;

• Cal OSHA must provide adequate legal and administrative support to prepare for and testify in court;

• Cal OSHA compliance personnel must ensure their training is complete and current, and if so, the courts must recognize them as experts;

• Cal OSHA must ensure all complaints are responded to in a timely manner;

• Cal OSHA should consider the employer’s statewide and national history when issuing repeat citations (currently, only reviewed in the district of the investigation);

• Cal OSHA must issue appropriate citations for failure to properly maintain the OSHA 300 log;

• Cal OSHA should conduct a review of the definition of a ‘serious’ violation;

Considering that only 19% of citations issued in California was serious when compared to 77% Federal, California took immediate action and incorporated AB 2774 which significantly revises both the definition of and the defense of serious violations. We will share more on AB 2774 in subsequent posts.

What we hope to illustrate in this posting is one of many ways that changes at the Federal level affect the state programs, and thereby affecting you locally. Cal OSHA is disputing some of the report findings, but ultimately, they most likely will need to adopt the recommendations. A cursory review of the above points shows that the impact on your business could be great. How comfortable are you with your safety program? Will it hold up under increased scrutiny by Cal OSHA in light of the pressure they are receiving from Fed OSHA?

As we have shared in the past, we are passionate about safety and would appreciate the opportunity to partner with you in reviewing your program. Please contact us at safety@ewspros.com to schedule a review. As always, please don’t hesitate to ask questions.

Quick Thank You

We would like to post a quick ‘Thank You’ to all that have sent us emails with compliments, questions, and requests. When we started our blog, we were cautiously optimistic as we did not really know what to expect. The response we have received has been tremendous, and we are very glad (and proud) that we have been able to help. For those that may have a question or topic request, please don’t hesitate to share at lisette@ewspros.com.

Thank you, Lisette

Sharpen your judgement, what you may have missed.

When an injury occurs, the first reaction is to identify what was ‘unsafe’ about the situation:  Was a pallet in the employees walking path? Was there a liquid spill on the floor? Did something fall, and if so, what?  This first reaction misses a critical element:  the employee’s behavior.  It is estimated that 70-75% off all work place injuries are the result of employees behaviors, specifically disregard for established safety protocols.  By determining and addressing these behaviors, you will uncover valuable information critical to improving your safety record.  Behavioral based safety is the application of behavioral psychology to the safety arena, specifically studying the decisions employees make leading up to the injury.  In the case of our example before, you need to ask why the employee didn’t use the ladder.  Ask specific questions such as:               

• Is the employee new or a veteran employee?  Were they new to the location>
• Was the employee properly trained?  How current is the training?  Does the training address the root cause of the injury (i.e. at no time will an employee directly climb a display to reach merchandise).
• Was the department properly staffed, or short handed? 
  • If short handed, did the employee feel it was necessary to forgo the safety of the ladder and climb the racking in order to increase efficiency?
• Ask the employee to be specific in their thoughts/actions leading up to the injury

By answering these questions, you will gain a greater insight into the thought processes leading up to an injury and take steps to prevent future injuries through altering employees’ thought processes and behaviors.  In subsequent posts, I will address several topics of behavioral based safety.  My goal is to share the importance of and ways to implement this behavioral based safety in your specific organization.  The next article will focus on defining behavioral based safety in greater detail.    Should you have any questions or would like additional information, I can be reached via email at lisette@ewspros.com .

Sharpen your judgement, how would you handle the following situation?

You receive a call that an employee fell and hit their head on the floor.  As you arrive on the scene, you notice that entire sections of the jeans display have fallen and jeans are everywhere.  Your employee is laying on the floor, waiting for the arrival of emergency personnel.  As you begin your investigation, it becomes crystal clear that the employee climbed on the Jeans display to reach a certain size jean(s) located at the top of the display.  With that knowledge, you conclude your investigation:  The employee should have used the step ladder to reach the jeans instead of climbing on the display.  Had they done so, the injury would never have occurred.  Easy, case closed…….so you think.  What’s missing?