Cal/OSHA – Rulemaking Protecting Outdoor Workers from Wildfire Smoke


CAL/OSHA is developing rules that would require employers of outdoor workers to provide respiratory equipment when air quality is affected by wildfires. Smoke from wildfires can travel hundreds of miles and while an area may not be in danger of the wildfire, the smoke can be thick and dangerous, reaching unhealthy levels. Many employers want to hand out respirators to outside workers, but regulations governing the use of ventilators can be burdensome.

The California Code of Regulations, Title 8, Section 5144 requires employers that distribute respirators to implement a written respiratory protection program, require seal-testing before every use and conduct medical evaluations prior to use.

What to expect:
The regs are still in draft form and are unlikely to be completed this summer for the upcoming fire season.
But here is what you can expect:
The draft of the regulations would require that employers take action when the Air Quality Index (AQI) for particulate matter 2.5 is more than 150, which is considered in the “unhealthy” range. The protections would also be triggered when a government agency issues a wildfire smoke advisory or when there is a “realistic possibility” that workers would be exposed to wildfire smoke.

All California employers with “a worker who is outdoors for more than an hour cumulative over the course of their shift” would be required to comply with these regulations:
• Checking AQI forecasts when employees may reasonably be expected to be exposed to an AQI of more than 150.
• Establishing a system of communication to inform employees about AQI levels and changes in conditions that can lead to bad air quality, and about protective measures.
• Training workers in the steps they would have to take if the AQI breaches 150.

The regulations are pending with the Cal/OSHA Standards Board, which is expected to vote on them in July.  For now, if you do have outside employees who are confronted with working in smoky conditions, you should start stockpiling a two-week supply of N95 masks for all of your workers.

If you have not yet started on your efforts to provide antisexual harassment training to your California employees, you need to get working on it now. Law passed last year puts the onus on most employers in the state to provide anti-sexual harassment training to their staff every two years.
Starting this year, employers with five or more workers must provide:
• At least two hours of sexual harassment prevention training to all supervisory employees, and
• At least one hour of sexual harassment prevention training to all non-supervisory staff.

To be compliant by Jan. 1, 2020, as per the law, these trainings need to take place in 2019. They must then be provided every two years thereafter. This new law builds on legislation that has been in place since 2005 requiring employers with 50 or more employees to provide two hours of training to managers and supervisors every two years.

Timing of training

All employees – Under the new law, ushered in by SB 1343, most California employees must undergo anti-harassment training this year and every two years thereafter.
Supervisory employees – Supervisors and managers who are already covered by the aforementioned training requirements must continue to receive at least two hours of anti-harassment training within six months of becoming a supervisor, and at least every two years thereafter.
New employees – New employees must receive at least one hour of anti-harassment training within six months of being hired, and at least every two years thereafter.
Seasonal and temporary workers – This includes any employee that is hired to work for less than six months. These workers are required to receive training within 30 calendar days after the date they were hired, or within 100 hours worked, whichever comes first. Temp workers provided by an outside employment agency must receive anti-harassment training by the temp agency.

Training guidelines

Guidelines for what training should cover for employees have yet to be released.
The Department of Fair Employment and Housing is required to make available to employers on its website interactive training courses that satisfy the two-hour supervisory and one-hour nonsupervisory employee training requirements. Those materials are not scheduled to be available until “late 2019,” according to the department’s website.
The agency has on its website some materials to help employers, including a sample training kit, which you can find here.

Trainers

>nder the regulations for supervisory training, the training must be conducted by either:
• An employment law attorney, or
• A human resources or harassment prevention consultant with a minimum of two years of practical experience in sexual harassment prevention training, or
• A professor or instructor in a law school, college or university, and who teaches about employment law.

What training must cover

The training requirements for one hour of training have yet to be released. But you should use as a guide the following, which are in the California Code of Regulations:
• Definition of unlawful sexual harassment under the law.
• The types of conduct that constitute sexual harassment.
• Remedies available for sexual harassment victims in civil actions; potential employer/individual exposure/liability.
• Strategies to prevent sexual harassment in the workplace.
• Supervisors’ obligation to report sexual harassment,  discrimination, and retaliation of which they become aware.
• Examples that illustrate harassment and discrimination.
• Confidentiality of the complaint process.
• How to report harassment to management.
• The employer’s obligation to conduct an effective workplace investigation of a harassment complaint, and to take remedial action.
• Training on what to do if the supervisor is accused of harassment.
• The essential elements of an anti-harassment policy, and how to utilize it if a harassment complaint is filed.

Trainers

Under the regulations for supervisory training, the training must be conducted by either:
• An employment law attorney, or
• A human resources or harassment prevention consultant with a minimum of two years of practical experience in sexual harassment prevention training, or
• A professor or instructor in a law school, college or university, and who teaches about employment law.

What training must cover

The training requirements for one hour of training have yet to be released. But you should use as a guide the following, which are in the California Code of Regulations:
• Definition of unlawful sexual harassment under the law.
• The types of conduct that constitute sexual harassment.
• Remedies available for sexual harassment victims in civil actions; potential employer/individual exposure/liability.
• Strategies to prevent sexual harassment in the workplace.
• Supervisors’ obligation to report sexual harassment, discrimination, and retaliation of which they become aware.
• Examples that illustrate harassment and discrimination.
• Confidentiality of the complaint process.
• How to report harassment to management.
• The employer’s obligation to conduct an effective workplace investigation of a harassment complaint, and to take remedial action.
• Training on what to do if the supervisor is accused of harassment.
• The essential elements of an anti-harassment policy, and how to utilize it if a harassment complaint is filed.

Business Interruption Coverage Can Cover Lost Income

PG&E has warned California residents and businesses that it may shut down the power grid for as long as five days for large portions of the state when there are high-wind conditions during the dry fire season. That’s because PG&E’s infrastructure was found to be the cause of several recent wildfires.

PG&E sent letters to customers informing them that “if extreme fire danger conditions threaten a portion of the electric system serving your community, it will be necessary for us to turn off electricity in the interest of public safety.”  With the specter of multiple-day power outages, businesses need to be prepared for keeping their operations going and preventing losses that may not be covered by insurance.

Just think how difficult it would be if you lost access to your computers, which are the nervous system of any business today. If you have no power, your operations could be shuttered for all intents and purposes.
There a number of steps you can take to make sure your business is resilient and can keep functioning during power outages, especially if they last a few days:

Identify vital business functions

Identify business processes that will be affected by a power outage. These processes will differ from business to business, but once you put them all down on paper, it will be easier for  you to make a plan to keep them going.

Create a continuity plan

Once you’ve identified those processes, you should brainstorm on how you can keep them going without your regular power supply.

  • Create a plan outlining how employees should respond to the power outage.
  • Post emergency numbers on sight for employees to call, including your electricity supplier to get an estimate on when power may be restored.

Back-up power a must

Consider investing in a back-up generator that can keep the critical functions of your firm going during a power outage. Generators need to be used with adequate ventilation to avoid risk of carbon monoxide poisoning. Never plug generators directly into power outlets. Never use a generator under wet conditions, and let it cool off before refueling.

Cloud storage and MiFi

If you have not done so, you should secure a means of paperless document and file storage on the cloud. If there is a power outage and an accompanying surge, you could quickly lose your data. Plan ahead with a cloud server.

You should also prepare a system of personal wireless hotspots, or MiFi devices, so that even when the internet goes down, you can finish important tasks requiring web access, such as setting up an e-mail auto-response.

Consider business interruption coverage

The best way to minimize the financial blow is to have the
proper insurance in place. A multiple-day power outage could really crimp your income stream and, if you lose money due to your inability to operate, the typical business owner’s policy won’t cover lost revenue.

But, a business interruption policy would. These policies will reimburse you for lost revenues due to a number of events, including “service interruption” due to power outages and other utility services interruptions.

The important caveat is that the interruption was not caused by any of your own faulty equipment or wiring. But if the power company is shutting down power, any losses you incur should be a valid claim.

Society has become increasingly aware of the problem of sexual harassment in the workplace. Several high-profile  offenders have seen their careers harmed or ended.  Employers are beginning to realize the harm this behavior  among employees can cause. However, the problem might not
be the business’s workers; in many cases, it is the customers.

Harassment by customers may occur in any business, but it is especially prevalent in the hospitality sector. That’s especially
true if customers have been drinking and behave inappropriately toward waitresses, bartenders, casino dealers or housekeeping staff.

Sales representatives may be subjected to unwanted attention and language, particularly during client dinners where most of the diners are men. And nurses are regularly subjected to patients exposing themselves or touching them improperly.

Employers who do learn of these problems have at least a legal responsibility to address them. Some employers, such as restaurants, have a no-questions asked procedure whereby a server can report to a supervisor that a customer is making them feel uncomfortable and the supervisor will immediately assign someone else to that table.

This policy tells employees their complaints will be taken
seriously.

If an employee complains…

• Listen to them and take them seriously.
• Thank them for coming forward.
• Let them know that the issue will be addressed with the customer.
• Ask them to report any further incidents that may occur.
• Do nothing to imply that they will be retaliated against.

What to do next

• Investigate the incident, including discussions with any witnesses.
• If the customer is from another business, refer the matter to an appropriate person at that company. This should be someone with the authority to take any necessary action.
• If the customer is an individual, separate the employee and the customer.
• If the customer persists, issue a warning.
• As a last resort, ask the customer to leave the premises.

The legal implications

Employers cannot afford to ignore these problems. Equal Employment Opportunity Commission regulations hold an employer liable for harassment by non-employees over whom it has control, such as customers on the premises, if it knew, or should have known about the harassment and failed to take prompt and appropriate corrective action. The EEOC levies penalties of up to six figures for sexual harassment. In addition, victimized employees may sue their employers for tolerating hostile work environments. Settling these lawsuits can be costly.

If the employers do not carry employment practices liability insurance, settlement costs and attorney and court fees will be paid for out of pocket. Lastly, the failure to protect employees from harassment can lower workplace morale. This will inevitably lead to increased staff turnover. The employer will lose valuable employees and be faced with the cost of hiring replacements.

Federal law gives employees the right to feel safe at work, free from mistreatment by co-workers, supervisors and on employees. It is also good business practice to provide a place
where people want to work. Employers must be vigilant about possible mistreatment of staff by customers and vendors. Tolerating this behavior may save a customer in the short run, but it will cost the business dearly in the longer term.

A final thought: Sexual harassment is not the sole preserve of men harassing women. It is also an issue of women harassing men, men harassing men, or one female harassing another.

More and more employers are banning cell phones in the workplace because they are distracting enough to be a serious safety issue for workers.

Most notably, General Motors has banned all employees, including its CEO, from walking around with their mobile phones while talking, texting or using other smartphone functions.
You already know the dangers of using your phone while behind the wheel, as vehicular deaths have spiked since the ubiquity of smartphones. But in many workplaces – think  warehouses, construction sites, factories and other worksites with equipment and inventory – the distraction of a smartphone can have deadly consequences. In busy workplaces, safety should be your primary concern. Consider the following:

Industrial machinery and phones don’t mix

OSHA bars the use of cell phones in construction regulations  pertaining to cranes and derricks, but the hazard exists across any dangerous equipment.
Some workers should absolutely not have their mobile phones on and within reach, such as powered industrial truck operators, forklift drivers and machinery users. If you have any of these among your workforce, you should strictly ban the use of mobile phones in any capacity during the use of industrial equipment.

You may consider extending the ban to include all of the other employees who regularly work around that equipment, particularly when they are walking or moving product to and from the warehouse. Also, if any staff from your office are in the work area, they too should refrain from using their phones while walking.

The biggest dangers

The best way to prevent workplace injuries is for employees to be aware of their surroundings. When people are using cell phones in an operational environment, it impedes their ability to recognize and react to hazards, particularly moving equipment like forklifts.
The biggest concern is people who are in the middle of writing long messages and engaging with others on social media or texting. Many of these apps have been shown to greatly reduce the user’s awareness of the real world around them.
There are many instances in which workers cause traumatic injuries or even death to themselves or others due to cell phone distractions that could have easily been prevented.

Potential property damage

Distracted cell phone usage is known to cause workers to accidentally misuse equipment or machinery, which can result in either small or serious damage to company property. Also, having a cell phone around hazardous chemicals or waste can pose a serious threat to the health and safety of all workers in the vicinity, in addition to property damage. Furthermore, the cost of replacing damaged property can have a major financial impact on your organization and possibly be at your expense.

WHAT YOU CAN DO

Create a policy that explicitly explains when and where  employees may use their mobile phones while on the job.  Some companies ban cell phones altogether, particularly call centers where employees’ devices are collected at the beginning of the day and kept in lockers until breaks. Consider the following for your rules:

• Mobile phones are barred for employees when performing on-site job-related tasks.
• Answering calls, texting, checking social media or using the Internet are all activities that fall under dangerous cell phone usage.
• Set parameters for when and where employees are allowed to use their phones.
• Consider restricting types of media and videos.
• Hold employees accountable to productivity levels. Note that time spent on the phone on personal matters is keeping them from focusing on their jobs.

One by-product of a strong economy is more employment, but the increased activity usually results in more workplace injuries.
That’s because there are more inexperienced people on worksites and when a company is busy and there is more activity, the chances of an incident occurring also increase. This is especially the case in manual labor environments from production facilities, warehousing and logistics to construction and other trades.

The September USG + U.S. Chamber of Commerce Commercial Construction Index found that 80% of contractors said that the skilled labor shortage is affecting jobsite safety and it’s the number one factor  ncreasing safety risk on the jobsite.  As business activity grows and the job market tightens, many companies are forced to hire more inexperienced workers who are not skilled at understanding all safety hazards.
Experienced personnel have the know-how to identify workplace hazards and understand the safety protocols for all aspects of their work. While training can help new hires, nothing beats experience. Additionally, with many businesses working hard to fulfill orders, workplaces are busier. Amidst all that hustle and bustle and people moving quickly, the speed and activity can also contribute to accidents in the workplace.

Also, aggressive scheduling may cause employers to use workers with less experience or training, and can push employees to work longer hours. If employees are working overtime, they may also be tired and fatigued, which can contribute to poor judgment and workplace incidents.
One other issue that’s affecting workplace safety and is related to the tight job market is that employers are often having to settle for workers they may not normally hire in other times. As you know, the scourge of opioid addiction has been rampant and unfortunately if someone  who has an addiction is hired, they may be a serious liability for the employer. Not only that, but more states are legalizing recreational marijuana and nearly 40 states have medical marijuana laws on the books.

Here’s what’s concerning construction employers on the worker addiction front, according to the USG + U.S.
Chamber of Commerce Commercial Construction Index:
• 39% were concerned about the safety impacts of opioids.
• 27% were concerned about the safety impacts of alcohol.
• 22% were concerned about the safety impacts of cannabis.

The report showed that while nearly two-thirds of contractors had strategies in place to reduce the safety risks presented by alcohol (62%) and marijuana (61%), only half had strategies to address their top substance of concern: opioids, which is a growing issue.

What you can do
In this environment of labor shortages and high competition for workers, employers need to put a premium on safety.

MANY BUSINESS owners don’t think twice when asking a worker to run to the office supply store, to the bank or run another errand for the company while on the clock.

But as soon as that employee enters their personal vehicle on a trip for your business, you automatically become vicariously liable for their actions.

Think it’s not a big deal? There have been cases when employers have been found liable and ordered to pay up to $25 million for crashes involving employees using their cell phones while driving, according to the National Safety Council.

That means if your employee is in an accident and injures a third party, damages another car or injures themselves, your firm could be held liable.

For injuries to only your employee, your workers’  compensation insurance would handle the costs, but for injuries to others and third party property, you are ultimately liable since they were carrying out duties for your firm.

The employee’s auto insurance will be primary, but the problem arises when the coverage is insufficient. The employer can then be sued by the third party.

And once a third party knows there is an employer behind the person who hit them, that often encourages them to sue, seeking, even more, damages than they normally would.

With that in mind, you should do all you can to reduce your exposure by writing a policy for your driving employees (see box on right). Besides having a driving policy in place, you can also make sure to hire employees who are safe drivers by checking their driving records
during the hiring process.

Also, make sure that your management is on board with the policy. That means that managers should avoid texting or calling employees while they are driving on company duty. That would clash with your policy on barring cell-phone use while driving.

Finally, you should make sure that you have proper insurance in place in case calamity strikes. And unfortunately, some employees will inevitably be slack in following even the best laid out policies.

Commercial auto will cover all of your workers who drive company vehicles for collisions, but it won’t cover employees if they are driving their own vehicles while on the job. Such vehicles are considered non-owned autos because they are not owned by the named insured.

Employees are not insureds while driving non-owned autos,
even if they are using the vehicles for company business.
But if you do have workers who use their personal vehicles for
work, like sales reps, you can purchase an endorsement for your commercial auto policy: Entitled Employees as Insureds.

This endorsement covers workers who drive their personal vehicles on behalf of their employer. But it provides excess coverage only, meaning that the employee’s personal auto policy will apply first if the worker is sued after an accident
involving their personal auto. The endorsement would apply only if the employee’s personal policy limits are breached.