OSHA watch

Reminder: Injury reporting data for certain establishments was due March 2

March 2 was the deadline for establishments with 250 or more employees that are currently required to keep injury and illness records, and establishments with 20-249 employees that are classified in certain industries with historically high rates of occupational injuries and illnesses to submit the Form 300A electronically to OSHA, using the Injury Tracking Application (ITA) on OSHA's website.

If you missed the deadline, the ITA accepts the Form 300A data through the end of the calendar year (December 31). You must electronically submit the data if you are required to do so. There are exceptions, so it's important to review the criteria to determine if you must submit.

Notice of proposed rulemaking on powered industrial truck standard

The proposed rule will update the design and construction requirements for powered industrial trucks standards for general industry and construction, including fork trucks, tractors, platform lift trucks, motorized hand trucks, and other specialized industrial trucks powered by an electric motor or an internal combustion engine. In addition to updating the design and construction requirements for future manufactured powered industrial trucks, the proposed rule will also address equipment manufactured before the effective date of the final rule. The deadline for submitting comments is May 17, 2022.

Spike in healthcare injuries and illnesses

Healthcare employers are being urged to immediately address the spike in injury and illness rates in 2020, when healthcare and social assistance workers combined for more injuries and illnesses than any other industry in the nation. Registered nurses had almost 79,000 cases involving days away from work in 2020 - nearly 59,000 more than in 2019, a 290.8 percent increase. Meanwhile, nursing assistants had more than 96,000 cases, almost 69,000 more than in 2019 - a 249.7 percent increase.

Court to hear arguments to reinstate Healthcare ETS

On April 4, 2022, a merits panel of the D.C. Circuit Court of Appeals will hear oral arguments in National Nurses United, et al., on a petition seeking to force OSHA to issue a permanent standard for healthcare occupational exposure to COVID-19 and to reinstate the Healthcare Emergency Temporary Standard on Occupational Exposure (Healthcare ETS) to COVID-19 pending the permanent standard. The emergency petition was filed by the National Nurses United and several other labor unions.

Court decision reminds employers of time limitations on contesting citations and penalties

A Fifth Circuit court decision, D.R.T.G. Builders, L.L.C. v. Occupational Safety and Health Review Commission, reminds employers that contesting citations must be done within 15 working days of receipt of the citations. The case considered whether proper notification was given to D.R.T.G. Builders, LLC of Houston, Texas when the citations were sent by certified mail to the employers' address of the inspection. The mail wasn't claimed, and two days later, the citations were reissued via UPS with tracking. The employer contested the citations, but it was more than 15 working days after the receipt of the UPS delivery. The employer argued the citations were not properly served by certified mail, as specified in the statute.

The court disagreed, noting that the service of the citations via UPS was reasonably calculated to provide the employer with the knowledge of the citation and an opportunity to contest it. It also found that the employer gave an address where no one was present to receive the certified mail and delayed response after receipt of the UPS.

Court determines employer cannot avoid liability even when foreman fails to follow safety rules

In Angel Bros. Enterprise Ltd v. Walsh, the 5th Circuit Court of Appeals found that the company was vicariously liable for a willful violation when a foreman directed an employee to proceed with excavation operations despite being directed by a safety manager to build a "trench box" to prevent cave-ins. The company did not dispute that the work was performed without cave-in protection; however, it argued it could not be held responsible for its foreman's refusal to follow company policy. While a 2006 decision found that an employer is not liable when a supervisor's unforeseen conduct results in a citation, the court noted the foreman did not engage in unsafe work. Moreover, the company had been cited in the past for trench violations and failed to prove it enforced its safety rules.

New tip sheet on avoiding MSDs while working remotely

A new fact sheet from the European Agency for Safety and Health at Work (also known as EU-OSHA) shares tips for optimizing ergonomics and staying healthy while teleworking. The document covers workstation setup, movement, stretches, and work-life balance.

New resources

Citing the increased circulation of airborne viruses when temperatures drop, a new alert Guidance on improving ventilation during cold winter months focuses on ventilation as an engineering control.

Other new resources include:

• Recommended practices for safety and health program (Spanish)
• Six ways to stay safe while working in marine terminal mechanical shops

WorkZone safety awareness

April 11-15 is National Work Zone Awareness Week and the National Stand-Down to Prevent Struck-by Incidents.

MIOSHA

Preliminary data shows 42 work-related fatalities in 2021. Eight were COVID-related.

Recent fines and awards

COVID-related

• For all federal COVID-19 citations
• Cal/OSHA COVID-19 citations
• The Washington State Department of Labor and Industries fined three companies a combined $285,000 for knowingly putting workers at risk of exposure to COVID-19. Grocery supply company United Natural Foods Inc., along with Capstone Logistics LLC and Prime 360, failed to adhere to basic safety procedures to limit the spread of COVID-19 at a co-run warehouse in Thurston County. About one in four employees, 253 people, working at the warehouse tested positive for COVID-19 between July 7, 2021 and Oct. 5, 2021.

Florida

• A Florida security contractor, VRP Group Inc. - doing business as Regius Investigations and Protective Services terminated a worker who raised concerns in a workgroup chat on a secure messaging app about safe firearm storage and coronavirus-related workplace hazards, including a lack of physical distancing and other potential exposure risks at a Texas worksite. The worker filed a retaliation complaint, the investigation found the company violated the OSH Act, and the DOL filed suit.

Georgia

• A series of inspections at Dollar General stores in Georgia and Alabama found the retailer continues to expose workers to unsafe conditions, including blocked exit routes, unstable stacking, and blocked workspace around electric panels. The investigations resulted in more than $1M in penalties.

Massachusetts

• Responding to a complaint indicating employees were exposed to excavation hazards while working at an East Boston residential construction site, inspectors found employees exposed to cave-in and other potentially life-threatening hazards. Laurence Moloney, doing business as Atlantic Coast Utilities LLC/Advanced Utilities Inc., and Nuala Nichoncubhair, doing business as Sterling Excavation LLC and their successors, were cited for four willful and three serious violations and one other than serious violation. Proposed penalties total $624,777. Moloney and his companies are viewed as serial violators and were cited in August 2021 for 28 violations following the deaths of two workers in a trench on High Street in downtown Boston, which totaled over $1.3 million in penalties and are being contested.

New Jersey

• Sinclair & Rush Inc. of Carlstadt faces nearly $130,000 in penalties for methylene chloride hazards, including allowing workers to be overexposed to the solvent, and failing to provide personal protective equipment, eyewash stations, and medical surveillance for workers exposed or potentially exposed to the solvent.
• The NJDOL issued stop-work orders to five out-of-state contractors - from Florida, Georgia, and North Carolina for misclassifying workers performing construction work at Brookfield Properties, in Monroe Township. They were found to owe almost $30,000 in back wages and were assessed a five percent penalty of the workers' gross earnings for the prior 12 months to be paid to the workers.

Pennsylvania

• A fatality citation issued to 84 Lumber Co. was vacated by an Occupational Safety and Health Review Commission judge, based on the definition of "allow." The driver of a semi owned and operated by BLS Trucking ran under a suspended load of wood on a forklift, which was being loaded onto his truck. When the load became unstable, it fell and killed the driver. The judge considered the definition of "allow" in the regulation and determined that the company did not violate the standard because it did not give "permission" for such conduct.

Virginia

• A three-judge appeals court panel of the 4th Circuit determined that an administrative law judge had improperly relieved the Secretary of the Department of Labor of the burden of proving that New River Electrical Corp. had constructive knowledge of the three serious violations that were cited after an employee suffered severe burns when he picked up a live electrical wire at a jobsite. The panel reversed the order and remanded the case for further proceedings "that properly allocate the burdens of proof between the parties."