Cal/OSHA Rulemaking – Permanent Wildfire Safety Rules on Tap – OCTOBER 2020


AS WILDFIRES continue raging throughout California, Cal/OSHA has issued a reminder to employers that they are required to protect their outdoor workers from smoke if the Air Quality Index exceeds 150. Cal/OSHA has extended an emergency regulation it put in place in August 2019 through January 2021 as it works on a permanent regulation on wildfire smoke protection for outdoor workers in the state.

For the safety of your workers and to comply with the regulation, it’s important that you follow the regs and know when you will need to take action to protect them from outdoor smoke.
The regulation applies when the AQI for airborne particulate matter 2.5 microns (PM2.5) or smaller is 151 or greater in an area where employees are working outdoors. Here are the details:

Identification

Employers must monitor the AQI for PM2.5. You can monitor the index using the following websites:

  • U.S. EPA AirNow
  • U.S. Forest Service Wildland Air Quality Response Program
  • California Air Resources Board
  • Local air pollution control district websites or local air quality management district websites.

Training and instruction

Employers with outdoor workers need train their workers in:

  • The health effects of wildfire smoke.
  • Their right to obtain medical treatment without fear of reprisal.
  • How they can obtain the current AQI for PM2.5.
  • Actions they must take if the AQI exceeds 150 PM 2.5

Communication

Employers must implement a system for communicating wildfire smoke hazards to all affected employees, as well as a system for employees to inform the employer of smoke hazards.

The takeaway

If you have outside employees who may have to work in smoky conditions, you should stockpile a two-week supply of N-95 masks for all of them if you are unable to implement other controls to reduce their exposure.
Cal/OSHA is in the process of making the emergency rules permanent and has sent them out for public comment. We will continue monitoring the agency’s progress on the rules and update you when they have been completed.

 

 


Double Down on Safety This New Year – January 2020 RISK REPORT


As the new year gets underway, now would be a good time to double down on your workplace safety efforts to see if there are any areas that you may be overlooking.
While your safety regimen may be top-notch, there is always room for improvement and you can consider these options as recommended by EHS Today:

Use a 10-second rule

Workers should consider using the 10-second rule before resuming a task after a break or disruption. During this time before resumption, the worker can conduct a mental hazard check, which EHS Today refers to as STEP:
S – Stop before resuming a job or beginning a new task.
T – Think about the task you are about to do.
E – Ensure potential hazards have been identified and mitigated.
P – Perform the job.

Take advantage of OSHA training

The OSHA Outreach Training Program provides training for workers and employers on the recognition, avoidance, abatement and prevention of safety and health hazards in workplaces. Through this program, workers can attend 10-hour or 30-hour classes delivered by OSHA-authorized trainers. The 10-hour class is intended for entry-level workers, while the 30-hour class is more appropriate for workers with some safety responsibility. Information is on OSHA’s website. Communicate with non-English-speaking workers Non-English-speaking laborers have more workplace accidents than their peers. The language barrier may keep them from reporting workplace hazards and they may not understand safety instructions.

If you have non-English-speaking workers:
• Ensure that training is fully understood.
• Try to get any safety training materials also printed up in Spanish, and other languages prevalent in your workplace.
• If you have one, provide them a contact in your organization that speaks their language, so that they can get answers to any questions they may have or to report concerns.

Urge employees to speak up

Let your workers know that there will be no retribution for reporting perceived workplace hazards, no matter how minor. You can also implement the third suggestion above, and reward employees that point out safety issues.

Make your training engaging

The best safety training programs are those that employees remember. Some good ways to make sure the information is retained include using real-life examples, story-telling, skits and strong video presentations.

Do more than OSHA requires

OSHA’s regulations are meant to be comprehensive, but every workplace is different and for a truly effective safety program you should fine-tune your safety requirements specifically for your workplace. In other words, you can go a step beyond what OSHA requires.

Watch each other’s back

You should also instill a sense of responsibility among your staff to look out for each other. If a worker sees another performing a job in an unsafe manner, they should step in to offer assistance. This can be done without being intrusive or confrontational.
Some good approaches include: “Hey, would you like me to watch out for your safety?” and “As you know, you need to be wearing cut-resistant gloves to perform that task.”


CAL/OSHA REPORTING – New Law Changes When Injuries Must Be Reported


Gov.  Gavin Newsom has signed a measure into law that will greatly expand when employers are required to report workplace injuries to Cal/OSHA. The new law, AB 1805, broadens the scope of what will be classified as a serious illness or injury which regulations require employers to report to Cal/OSHA “immediately.” As of yet there is no effective date for this new law, but observers say regulations will first have to be written, a process that would start next year.

The definition of “serious injury or illness” has for decades been an injury or illness that requires inpatient hospitalization for more than 24 hours for treatment, or if an employee suffers a “loss of member” or serious disfigurement. The definition has excluded hospitalizations for medical observation. Serious injuries caused by a commission of a penal code violation (a criminal assault and battery), or a  vehicle accident on a public road or highway have also been excluded.

Compliance

Rules for reporting serious injuries and illness or fatalities are as follows:
• The report must be made within eight hours of the employer knowing, or with “diligent inquiry” should have known, about the serious injury or illness (or fatality).
• The report must be made by phone to the nearest Cal/ OSHA district office (note that a companion bill, AB 1804, eliminated e-mail as a means of reporting because e-mail can allow for incomplete incident reporting).

Because of the “diligent inquiry” component, employers should monitor any injured worker’s condition once they learn of an injury, particularly if they need to seek out medical treatment. A member of the staff should be on hand to monitor the employee and report to supervisors immediately if that person will need to be hospitalized. Employers should make sure that supervisors are made aware of the new rules so that any time a worker is injured to the point that they need to be  hospitalized, they know to notify Cal/OSHA within eight hours.

Also, if you have an employee that suffers a medical episode at work – such as a seizure, heart attack or stroke – you are required to report the hospitalization to Cal/OSHA. It’s better to err on the side of caution if an employee is hospitalized for any reason. Not doing so can result in penalties for failure to report or failing to report in a timely manner. Accordingly, it is important to educate management representatives, particularly those charged with the responsibility to make reports to Cal/OSHA, about the nuances of Cal/OSHA’s reporting rules.

One final note: The results of a serious injury or illness or workplace fatality will usually trigger a site inspection by Cal/OSHA, so be prepared if one should occur.


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.


WORKPLACE SAFETY – OSHA Not Letting Up on Inspections, Penalties


Despite widespread expectations, FedOSHA under the Trump administration has not backed off on enforcing workplace safety regulations.

In fact, the agency is as aggressive as ever and citations issued have also risen, after fines increased substantially three years ago. Based on
OSHA statistics, a company that’s inspected has only a 25%
chance of not receiving a single citation.

In other words, employers should keep up their safety regimens to not only avoid being cited but also to avoid workplace injuries.

WHAT’S GOING ON WITH OSHA

Enforcement emphasis still going strong – There are more than 150 local and regional enforcement emphasis programs as well as nine national programs in effect that were implemented at the end of the Obama administration. OSHA is dutifully enforcing them all.
Budget bucks the trend – Despite the budget-cutting at many federal agencies, OSHA saw a $5 million increase in its fiscal year 2019 budget from the year prior.
Most notably, that was the first budget increase since 2014. In addition, state-run OSHA programs also received a small budget enhancement of $2 million.

Fines increasing – OSHA has not moved to reverse the maximum fines for safety violations after they were increased substantially in 2016. They increased by 2.5% for 2019 from 2018 as the law requires that they keep pace with inflation.

 

 

Inspections stable – The number of inspections remains unchanged.
Focus on repeat violators – A focus on repeat violations has continued, with 5.1% of all violations in this category. The percentage has been over 5% since FY2016.
General duty clause – There has been expansion of the general duty clause to cite employers for heat stress, ergonomics, workplace violence, and chemical  exposures below the permissible limit.

NEW EMPHASIS

And 2018 also saw a new effort by OSHA to fine-tune its work. It issued a memo in May that formalized the use of drones with the employer’s consent) to collect evidence.

This has been somewhat controversial because it could enhance its ability to find other violations it might not normally find.

According to the Fiscal Year 2019 Congressional Budget Justification for the Occupational Safety and Health  Administration, increased enforcement seems to be more likely than a decrease.

Also, although there have been no officially released statements, the new electronic injury and illness reporting information will be used by OSHA and state plans to increase enforcement.

The increased budget, according to the Congressional Budget Justification, will support additional compliance safety and health officers to provide a greater enforcement presence and provide enhanced technical assistance to employers who need help in understanding how to achieve compliance with OSHA standards.