Crane Certification – Final Rule Issued by DOL

WASHINGTON, DC – The U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) published a final rule today that clarifies certification requirements for crane operators, and maintains the employer’s duty to ensure that crane operators can safely operate the equipment. The final rule will maintain safety and health protections for workers while reducing compliance burdens.

Under the final rule, employers are required to train operators as needed to perform assigned crane activities, evaluate them, and document successful completion of the evaluations. Employers who have evaluated operators prior to December 9, 2018, will not have to conduct those evaluations again, but will only have to document when those evaluations were completed.

The rule also requires crane operators to be certified or licensed, and receive ongoing training as necessary to operate new equipment. Operators can be certified based on the crane’s type and capacity, or type only, which ensures that more accredited testing organizations are eligible to meet OSHA’s certification program requirements. The final rule revises a 2010 requirement that crane operator certification must specify the rated lifting capacity of cranes for which the operator is certified. Compliant certifications that were already issued by type and capacity are still acceptable under this final rule.

The final rule, with the exception of the evaluation and documentation requirements, will become effective on Dec. 9, 2018. The evaluation and documentation requirements will become effective on February 7, 2019.

OSHA Issues Memorandum on Safety Incentive Plans and Post-Accident Drug Testing

Under the previous administration OSHA produced a rule that left many of us scratching our heads about the implementation of safety incentive programs using prizes as motivators and how/when to conduct post-accident drug testing.  Last week OSHA clarified that 1904.35(b1)(iv) does not prohibit safety incentive programs or post-incident drug testing. By issuing the latest memorandum they have superseded all previous guidance.

Evidence that the employer consistently enforces legitimate work rules (whether or not an injury is reported) would demonstrate that the employer is serious about creating a culture of safety, not just the appearance of reducing rates. Action taken under a safety incentive program or post-incident drug testing policy would only violate 29 C.F.R. § 1904.35(b)(1)(iv) if the employer took the action to penalize an employee for reporting a work-related injury rather than for the legitimate purpose of promoting safety.

OSHA now recognizes that incentive programs can be an important tool to promote safety.  Employers that are earnest in their efforts to create a workplace culture that emphasizes safety, not just injury rates, should also include the following elements to ensure that employees actually feel free to report incidents without retaliation:

  1. An incentive program that rewards employees for identifying unsafe conditions in the workplace;
  2. A training program for all employees to reinforce reporting rights and responsibilities and emphasizes the employer’s non-retaliation policy;
  3. A mechanism for accurately evaluating employees’ willingness to report injuries and illnesses.

In addition, OSHA now says that most instances of drug testing are permissible.  Examples include:

  1. Random drug testing.
  2. Drug testing unrelated to the reporting of a work-related injury or illness.
  3. Drug testing under a state workers’ compensation law.
  4. Drug testing under other federal law, such as a U.S. Department of Transportation rule.
  5. Drug testing to evaluate the root cause of a workplace incident that harmed or could have harmed employees.  If the employer chooses to use drug testing to investigate the incident, the employer should test all employees whose conduct could have contributed to the incident, not just employees who reported injuries.

In my opinion, this shift provides clarity for our cooperatives when dealing with safety incentive programs and post-accident drug testing.  This does not mean that you have to change current policies, but instead allows you to consider rewarding employees for maintaining injury free records.  However, as many of the cooperatives have noted, instituting programs that do not penalize employees (even reward them) for reporting injuries and near-misses provides for more open conversation about incidents that occur in the workplace.  This has helped to change the culture at many cooperatives.

If you have any questions about this recent change in position or would like to discuss safety incentive programs that really work to create a safe culture, please feel free to contact me.

I have attached the OSHA memorandum below in its entirety.

https://www.osha.gov/laws-regs/standardinterpretations/2018-10-11

How One Small Meeting Turned into a Big Idea

How One Small Meeting Turned into a Big Idea

54 years ago, a few electric utility safety professionals from four Midwestern states gathered together to share challenges and ideas in promoting safety and formed Quad State Instructors, Inc. Today, more than 120 QSI members hail from 22 states and the organization holds two conferences per year where attendees can exchange information and solutions, upgrade skills and collaborate on training programs and best practices. Members are primarily electric utility safety professionals serving electric cooperatives and municipal utilities.

Led by an elected executive team of four members, Quad State Instructors has a long-standing mission to collaborate, promote and continuously identify best practices in safety and risk management that will provide its members the tools and resources necessary to effectively enhance their individual organization and community safety programs. All QSI conferences, committees and projects are organized around the fundamental value of increasing safety awareness and education through a variety of trainings, discussions and presentations from experts in the safety field.

Membership continues to grow year over year, and members can earn 15 continuing education credits for attending a QSI conference. Networking and program sharing are the benefits that really set this organization apart. QSI also maintains an online archive with hundreds of programs developed for use in utilities. QSI members sit on many different committees and contribute to an array of different programs, making a difference in the safety of thousands of utility employees at cooperatives and municipalities across the United States.

“I’ve worked in the electric utility industry for over 30 years, and I’ve been involved with several groups that promote safe work practices and technical training. The Quad State Instructors is by far the most dedicated team I have been affiliated with.  QSI’s commitment to getting our utility personnel home safely each and every day is second to none,” remarked QSI vice chair Matt Pociask, who serves as a job training and safety instructor with the Iowa Association of Electric Cooperatives.

Over the years, QSI has collaborated with the National Rural Electric Cooperative Association (NRECA), Federated Rural Insurance, and the National Utility Training & Safety Education Association (NUTSEA) on projects and ventures, including the original safety accreditation program, assisting in the development of annual inspection criteria with Federated Insurance, creating a model safety program, compiling a comprehensive list of job safety analyses, developing OSHA compliance documents, and various technical projects.

QSI continually works to develop relationships with vendors and manufacturers in the utility field; these partnerships keep members informed on trends and new technologies.

***The above was submitted to IP magazine for publication.

OSHA Updates Recordkeeping Regulation

Clarification of Employer’s Continuing Obligation To Make and Maintain an Accurate Record of Each Recordable Injury and Illness

AGENCY: Occupational Safety and Health Administration (OSHA), Labor.

ACTION: Final rule.

———————————————————————–

SUMMARY: Under the Congressional Review Act, Congress has passed, and

the President has signed, Public Law 115-21, a resolution of

disapproval of OSHA’s final rule titled, “Clarification of Employer’s

Continuing Obligation to Make and Maintain an Accurate Record of each

Recordable Injury and Illness.” OSHA published the rule, which

contained various amendments to OSHA’s recordkeeping regulations, on

December 19, 2016. The amendments became effective on January 18, 2017.

Because Public Law 115-21 invalidates the amendments to OSHA’s

recordkeeping regulations contained in the rule promulgated on December

19, 2016, OSHA is hereby removing those amendments from the Code of

Federal Regulations.

DATES: This final rule becomes effective on May 3, 2017.

Analysis

This rulemaking is significant in that it defines OSHA’s authority as to when they can cite a company for not keeping their injury and illness records (i.e. Form 300) current Companies with 10 or more employees are still required to keep and maintain 5 years of injury and illness data. The impact of the legislation and rule recession does not change this requirement. What the legislation did was say that OSHA could not cite companies beyond the 6-month statute of limitation for not keeping the records current. OSHA was citing and fining companies for not keeping the records current over the 5 year retention period.

Therefore, OSHA can cite you for not having the records. They can’t cite you for not keeping them current, past the 6 month deadline. Since there is a 7 day window to record an injury, the period of time a company could be cited for not recording an injury or illness is 6 months and 7 days.

In addition, there are NO revisions in this notice to the following rules:

  • 1904.39 – Reporting fatalities, hospitalizations, amputations, and losses of an eye as a result of work-related incidents to OSHA
  • 1904.41 – Electronic submission of injury and illness records to OSHA (due to start on July 1, 2017)

Employer Requirements for Injury and Illness Reporting – New Requirements

What does the rule require?

The new rule, which takes effect Jan. 1, 2017, requires certain employers to electronically submit injury and illness data that they are already required to record on their onsite OSHA Injury and Illness forms. Analysis of this data will enable OSHA to use its enforcement and compliance assistance resources more efficiently. Some of the data will also be posted to the OSHA website. OSHA believes that public disclosure will encourage employers to improve workplace safety and provide valuable information to workers, job seekers, customers, researchers and the general public. The amount of data submitted will vary depending on the size of company and type of industry.

Anti-retaliation protections

The rule also prohibits employers from discouraging workers from reporting an injury or illness. 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. These provisions become effective August 10, 2016.

Compliance schedule

The new reporting requirements will be phased in over two years:

Establishments with 250 or more employees in industries covered by the recordkeeping regulation must submit information from their 2016 Form 300A by July 1, 2017. These same employers will be required to submit information from all 2017 forms (300A, 300, and 301) by July 1, 2018. Beginning in 2019 and every year thereafter, the information must be submitted by March 2.

Establishments with 20-249 employees in certain high-risk industries* must submit information from their 2016 Form 300A by July 1, 2017, and their 2017 Form 300A by July 1, 2018. Beginning in 2019 and every year thereafter, the information must be submitted by March 2.

OSHA State Plan states must adopt requirements that are substantially identical to the requirements in this final rule within 6 months after publication of this final rule.

To read the text of the rule, click the following link:  RULE CHANGES

 

 

 

FMCSA – Annual Random Controlled Substances Testing Rate Change for 2016

DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

Annual Random Controlled Substances Testing Percentage Rate for Calendar Year 2016

AGENCY: Federal Motor Carrier Safety Administration (FMCSA), DOT.

ACTION: Notice of program change.

SUMMARY: The FMCSA announces,

pursuant to 49 CFR 382.305, that it is reducing the minimum annual percentage rate for random controlled substances testing for drivers of commercial motor vehicles (CMVs) requiring a commercial driver’s license (CDL) from the current rate of 50 percent of the average number of driver positions to 25 percent of the average number of driver positions, effective in calendar year 2016. The FMCSA Administrator has the discretion to decrease the minimum annual random testing percentage rate based on the reported positive random test rate for the entire motor carrier industry. Based on the controlled substances random test data in FMCSA’s Management Information System (MIS) for calendar years 2011, 2012, and 2013, the positive rate for controlled substances random testing fell below the 1.0 percent threshold for 3 consecutive calendar years. As a result, the Agency will lower the controlled substances minimum annual percentage rate for random controlled substances testing to 25 percent of the average number of driver positions. In accordance with 49 CFR 382.305(e)(2) if, in the future, the reported positive rate for any calendar year is equal to or greater than 1.0 percent, the FMCSA Administrator will increase the minimum annual percentage rate for random controlled substances testing to 50 percent of all driver positions.

 DATES: Effective January 1, 2016, the minimum annual percentage rate for random controlled substances testing, for drivers of commercial motor vehicles (CMVs) requiring a commercial driver’s license (CDL), will be 25 percent.

FOR FURTHER INFORMATION CONTACT: For information concerning this notice, contact Mr. Juan Moya, Drug and Alcohol Program Manager, Compliance Division, Federal Motor Carrier Safety Administration, 1200 New Jersey Avenue SE., Washington, DC 20590, 202–366–4844 or fmcsadrugandalcohol@dot.gov.

Proposed Rulemaking – OSHA Recordkeeping Clarification

DEPARTMENT OF LABOR
Occupational Safety and Health Administration
29 CFR part 1904
[Docket No. OSHA–2015–0006]
RIN 1218–AC84
Clarification of Employer’s Continuing Obligation To Make and Maintain an
Accurate Record of Each Recordable Injury and Illness
AGENCY: Occupational Safety and Health Administration (OSHA), Labor.
ACTION: Notice of proposed rule.
SUMMARY: OSHA is proposing to amend its recordkeeping regulations to clarify
that the duty to make and maintain accurate records of work-related injuries
and illnesses is an ongoing obligation.  The duty to record an injury or illness
continues for as long as the employer must keep records of the recordable
injury or illness; the duty does not expire just because the employer fails to
create the necessary records when first required to do so. The proposed
amendments consist of revisions to the titles of some existing sections and
subparts, and changes to the text of some existing provisions. The proposed
amendments add no new compliance obligations; the proposal would not
require employers to make records of any injuries or illnesses for which
records are not currently required to be made.

LINK TO DOCUMENT

OSHA’s New Heat Safety Smartphone App – Now Available

News Release Archive

Updated Info, New App Advance OSHA’s Annual Campaign to Prevent Heat Illness in Outdoor Workers

Jul 07, 2015

Every year, thousands of workers become sick from exposure to heat, and some even die. Construction is one of the industries most affected by heat-related illness. Because employers are responsible for providing workplaces that are safe from excessive heat, OSHA has conducted an annual campaign to prevent heat illness in outdoor workers every summer for the past several years, and the 2015 version is now in full swing, with updated information and a brand-new Heat Safety Tool Smartphone App.
How can heat illness be prevented?

OSHA says employers should establish a complete heat illness prevention program to protect outdoor workers. This includes:

  • providing workers with water, rest and shade
  • gradually increasing workloads and allowing more frequent breaks for new workers or workers who have been away for a week or more to build a tolerance for working in the heat (acclimatization)
  • modifying work schedules as necessary
  • training workers about the symptoms of heat-related illnesses and their prevention
  • monitoring workers for signs of illness, and
  • planning for emergencies.

OSHA’s advice for workers on how to prevent heat related illness and fatalities includes:

  • Drink water every 15 minutes, even if you are not thirsty.
  • Rest in the shade to cool down.
  • Wear a hat and light-colored clothing.
  • Learn the signs of heat illness and what to do in an emergency.
  • Keep an eye on fellow workers.
  • “Easy does it” on your first days of work in the heat. You need to get used to it.

Learn more from OSHA’s Heat Illness Webpage

New Heat Safety Tool Smartphone App

This App allows workers and supervisors to calculate the heat index for their worksite, and, based on the heat index, displays a risk level to outdoor workers. Then, with a simple click, you can get reminders about the protective measures that should be taken at that risk level to protect workers from heat-related illness — reminders about drinking enough fluids, scheduling rest breaks, planning for and knowing what to do in an emergency, adjusting work operations, gradually building up the workload for new workers, training on heat illness signs and symptoms, and monitoring each other for signs and symptoms of heat-related illness.

It’s free for downloading from GooglePlay and iTunes and can be adjusted for Spanish.

Reminder: Working in full sunlight can increase heat index values by 15 degrees Fahrenheit. Keep this in mind and plan additional precautions for working in these conditions.

Hazard Communication Deadline Dates

Changes from the Proposed to the Final Rule: OSHA reviewed the record and revised the Final Rule in response to the comments submitted. Major changes include:

  • Maintaining the disclosure of exposure limits (Threshold Limit Values [TLVs]) established by the American Conference of Governmental Industrial
  • Hygienists (ACGIH) and carcinogen status from nationally and internationally recognized lists of carcinogens on the safety data sheets;
  • Clarification that the borders of pictograms must be red on the label;
  • Flexibility regarding the required precautionary and hazard statements to allow label preparers to consolidate and/or eliminate inappropriate or redundant statements; and
  • Longer deadlines for full implementation of the standard (see the chart below):

What you need to do and when:

  • Chemical users: Continue to update safety data sheets when new ones become available, provide training on the new label elements and update hazard communication programs if new hazards are identified.
  • Chemical Producers: Review hazard information for all chemicals produced or imported, classify chemicals according to the new classification criteria, and update labels and safety data sheets.

OSHA Haz Com

Other U.S. Agencies: The Department of Transportation (DOT), Environmental Protection Agency, and the Consumer Product Safety Commission actively participated in developing the GHS. DOT has already modified its requirements for classification and labeling to make them consistent with United Nations transport requirements and the new globally harmonized system.

Global implementation: The new system is being implemented throughout the world by countries including Canada, the European Union, China, Australia, and Japan.

Additional information: More information on the hazard communication standard, including the link to the Federal Register notice, can be found on OSHA’s hazard communication safety and health topics page at www.osha.gov/dsg/hazcom/index.html.

 

EEOC Issues Proposed Wellness Incentives Rule

Programs must be voluntary and nondiscriminatory

FACT SHEET FOR SMALL BUSINESS:

By Dana Wilkie  4/16/2015

The proposal, which the EEOC announced April 16, 2015, would amend regulations implementing the equal employment provisions of the Americans with Disabilities Act (ADA) to address the interaction between Title I of the ADA and financial incentives as part of wellness programs offered through employer group health plans.The U.S. Equal Employment Opportunity Commission (EEOC) has issued a proposed rule to help clear up confusion over using financial incentives in worksite wellness programs.

The proposal was published April 20, 2015, in the Federal Register with a 60-day public notice and comment period, through June 19, 2015.

The proposal provides what an EEOC press release described as “much needed guidance” to employers and employees about “how wellness programs offered as part of an employer’s group health plan can comply with the ADA consistent with provisions governing wellness programs in the Health Insurance Portability and Accountability Act (HIPAA), as amended by the Affordable Care Act (ACA).”

Many companies that provide health insurance offer wellness programs that encourage healthier lifestyles. To participate in these wellness programs, employees may be required to undergo health risk assessments that measure body weight and cholesterol, blood glucose, and blood pressure levels. Some programs offer employees financial and other incentives to encourage them to participate.

The ADA limits the circumstances in which employers may ask employees about their health or require them to undergo medical examinations. It allows such inquiries and exams if they are voluntary and part of an employee health program. Workers, however, can’t be required to participate in such programs, and they can’t be denied health coverage or disciplined if they refuse to participate.

The EEOC and the Republican-led Congress have been at loggerheads over the acceptability of “aggressive” financial incentives in wellness programs. On March 24, the House Education and the Workforce Committee held a hearing on a proposed bill that would limit EEOC enforcement activity toward these initiatives—H.R. 1189, the Preserving Employee Wellness Programs Act.

In recent months, the EEOC has filed three lawsuits alleging that employees lost out on financial incentives because they declined to participate in their employers’ wellness programs, and that this violated the ADA because the incentives rendered the programs involuntary. The proposed legislation is intended to protect wellness programs that offer incentives that fall within the maximums established by the ACA: up to 30 percent of the cost of annual health coverage; and for tobacco cessation programs, up to 50 percent of the cost of health coverage.

In addition, the ACA and its implementing regulations require that wellness programs provide a reasonable alternative or waiver for achieving the incentive if an individual can’t participate or achieve program goals due to a health condition or disability.

The EEOC’s proposed rule makes clear that wellness programs are permitted under the ADA, but that they may not be used to discriminate based on disability.

“Employers … may not subject employees to interference with their ADA rights, threats, intimidation, or coercion for refusing to participate in a wellness program or for failing to achieve certain health outcomes,” the press release states. “Individuals with disabilities must be provided with reasonable accommodations that allow them to participate in wellness programs and to earn whatever incentive an employer offers.”

The EEOC is also publishing a Fact Sheet for Small Businesses and a Question and Answer document for the public.

Proposed Rule Could Trim Tobacco-Cessation IncentivesAmong the key differences between the Equal Employment Opportunity Commission (EEOC) proposed rule on workplace wellness programs, published in the Federal Register on April 20, and previous federal agency guidance on the Affordable Care Act is that the EEOC proposal limits the size of financial incentives related to tobacco-cessation programs, according to an analysis by Epstein Becker Green P.C.ACA regulations issued in 2013 had increased the maximum total health-contingent wellness program incentive from 20 percent to 30 percent of the total cost of coverage under the group health plan and to 50 percent if used for tobacco cessation, echoing the statutory language of the ACA. But the EEOC’s proposed rule excludes the additional 20 percent incentive available for wellness programs related to tobacco cessation.

“By excluding the additional 20 percent incentive allowed under the ACA, employees lose the opportunity to lower their premiums by that additional amount. Even more troubling is that, depending on the employee, a refusal to permit the full tobacco cessation incentive might tip an employee over the ACA’s 9.5 percent threshold for ‘affordability,’ possibly resulting in assessable payments under the shared employer responsibility provisions,” according to the analysis.

Taking a somewhat different view, an alert from attorneys at Seyfarth Shaw LLP notes, “This proposed rule would further undercut the HIPAA rules which would permit a 50 percent incentive for smoking cessation programs even if a disability-related question or medical exam is required. (Presumably, the 50 percent incentive would still be permissible if no disability-related inquiry or medical exam is required, although the EEOC requests comments on this point.)”

According to attorneys at Epstein Becker Green P.C., “It is also of great significance that the EEOC takes the position that the measure of affordability and the impact of a 30 percent reward or penalty are based on self-only coverage. “It makes no sense that, where there is family or tiered coverage and the potential reward is available to all those covered, the 30 percent reward limitation should be based on self-only coverage.”

The attorneys also noted, “The proposed rule does not address whether the EEOC’s interpretation of the term “voluntary” and its interplay with wellness program incentives under the ADA cross over to similar provisions under GINA [the Genetic Information Nondiscrimination Act]. The EEOC says further rulemaking on GINA and wellness programs will be forthcoming.”

What Must Be Disclosed in the Wellness Program Notice?As highlighted by attorneys at Seyfarth Shaw LLP, under the proposed EEOC rule the wellness program sponsor must provide a notice to participants that clearly explains: What medical information will be obtained.

How the medical information will be used.

Restrictions on its disclosures.

How the program will prevent improper disclosure of the information (including whether the program complies with HIPAA Privacy requirements).