6/1/1998
Labor and the Law
By Mitzi Martin
Grit, grime and grease are just a few of the
workplace unpleasantness with which you contend. Employees are
exposed daily to hazardous materials such as solvents, paints,
cleaning and restoration products, as well as welding fumes.
Protecting your employees' health and safety
is not only the right thing to do, the law requires it. Your failure
to be familiar with broad legislation that protects America's
workforce can result in pain and suffering for your employees,
and high costs in terms of lost time, employee benefits and legal
liability.
A case study
Your employee is injured as he walks across
the garage floor into a backroom. He is carrying a cylinder head
when he steps on a 2 x 4 metal plate covering an opening in the
concrete floor. The opening and the plate have remained unchanged
for more than 30 years.
The employee hits his chest on the edge of
the concrete floor and lands several feet below. At the hospital,
he initially shows premature ventricular contractions. Later,
he is readmitted with dizziness and chest pain.
The plate covered the length of the opening
and overlapped its width by about four inches. Prior to this employee's
accident, another employee had driven a forklift over the plate
causing it to shift and a wheel to fall into the opening. Still
another employee had complained that the plate had moved when
he was scraping the floor around it; he almost had fallen into
the opening.
After the accident, a mechanical engineer said
the cross-frame under the plate would not have prevented its displacement,
and only about 25 lbs. of lateral force were necessary to dislodge
the plate.
The injured employee can sue you under the
following guidelines:
- For workers' compensation benefits.
- For negligence (you and/or the property
owner) in some states.
- For violation of the American Disabilities
Act (ADA) or the Family and Medical Leave Act (FMLA) or wrongful
discharge (retaliation for filing a workers' compensation claim)
if you later take personnel action against him.
- For retaliation for complaining about unsafe
working conditions if he mentioned safety concerns before or after
the fall and you later take personnel action against him.
And what if someone calls OSHA?
The government speaks
When Congress passed the Occupational Safety
and Health Act (The Act) of 1970, it authorized the U.S. Department
of Labor (DOL) to make rules for workplace safety. OSHA (Occupational
Safety and Health Administration) was created to enforce the rules.
Some states have similar laws, and OSHA can permit states to assume
jurisdiction over employment safety and health.
Employers with one or more employees (including
supervisors, managers, relatives, shareholders or corporate officers
performing work for the business) are covered. While protecting
the health and safety of America's workers is a laudable purpose,
The Act imposes a substantial burden. This burden falls heavily
on the shoulders of small businesses (10 or fewer employees) even
though special rules sometimes lessen their compliance burden.
The risk of an OSHA inspection
Congress prohibits OSHA from using funding
for random inspections of small businesses. However, machine shops
and rebuilders of all sizes are subject to inspections that relate
to a complaint, an alleged imminent danger or health hazard, an
investigation of a fatality or catastrophe, or alleged discrimination.
Although the chances of inspection are slim
for small shops because OSHA has only slightly more than 2,000
inspectors to cover 6-7 million employers, any shop may be inspected
when an employee, former employee, or third-party, e.g., a health
care professional treating an injured employee, complains.
Non-compliance can cost from a few hundred
dollars up to $70,000 per violation, or $7,000 per day for failure
to correct the problem. Willful violations resulting in death
can result in criminal sentences and fines.
The cost of non-compliance warrants several
ounces of prevention! First, you must understand how OSHA regulations
apply to your business. That can seem like an overwhelming prospect
because regulations and interpretations make up 1,000s of pages.
Fortunately, there are numerous resources to help you. Several
are identified in this column. For those with access to technology,
an abundance of information is at your fingertips.
A glance at your obligations
To locate which regulations apply to you, review
OSHA's Standard Industrial Classification Division Structure,
or SIC table, to find the particular classification(s) for your
operation. Then identify the standards that OSHA cites for that
SIC. Most of you will fall within either SIC 3714 - Motor Vehicle
Parts And Accessories, or SIC 7538 - General Automotive Repair
Shops.
SIC 3714 covers those primarily engaged in
manufacturing or rebuilding of motor vehicle parts and accessories.
These business are subject to numerous OSHA standards, e.g., mechanical
power presses, electrical systems design, general requirements,
occupational noise exposure, and woodworking machinery requirements.
These businesses were also subject to OSHA inspections in 1997
(nine in California, 15 in Pennsylvania and 22 in Texas).
SIC 7538 covers those primarily engaged in
general automotive repair. They, too, are subject to numerous
OSHA standards, e.g., abrasive wheel machinery, walking-working
surfaces, general requirements, oxygen-fuel/ gas welding/cutting,
other portable tools and equipment, use of electrical equipment,
compressed gases and air contaminants. Such businesses also were
targets of 1997 OSHA inspections (63 in California and six in
Texas).
Employers' duties in general
Many of the general industry standards (29
C.F.R. Part 1910) cover rebuilders. Employers, in general, must
comply with occupational safety and health standards, comply with
the "general duty clause" found in each standard, and
record and disseminate certain kinds of information.
The general duty clause
You are also subject to the so-called "general
duty clause," which requires you to eliminate serious hazards
to which no specific standard applies. You must make your workplace
free from "recognized hazards" that may cause death
or serious physical harm.
"Free" applies only to preventable
hazards. OSHA must show there are specific abatement measures
for the hazard. Also, you must "recognize" the hazard.
OSHA shows you how to "recognize" the hazard through
safety rules, employee complaints, ineffective efforts to eliminate
the hazard, similar employers' practices, and/or safety experts'
testimony. OSHA may cite the general duty clause in an investigation
of a fatality or disabling accident.
The duty to record and disseminate
You must collect, keep and disseminate certain
information. For example:
- Post a notice informing employees of their
rights and obligations.
- Report by telephone a work-related fatality
or hospitalization of three or more employees within eight hours
after the event.
- Post OSHA citations and safety orders.
- Maintain a log and summary of all "recordable"
occupational injuries and illnesses unless you fall within the
"small employer" exception.
- Post an annual summary of the log of "recordable"
occupational injuries and illnesses unless you fall within the
"small employer" exception.
- Give employees access to the log and annual
summary.
You must provide access to or disseminate information
about employee exposure to harmful chemicals. The following two
specific regulations apply to all employers:
- The Hazard Communication Standard
(29 C.F.R. 1910.1200 and 1926.59) (discussed below) requires you
to provide employees with information about potential exposure
to hazardous chemicals.
- The Access to Records Standard
(29 C.F.R. 1910.20) allows employees access to their medical records
and to exposure records.
Employees, too, must comply with all standards,
rules and regulations, but their failure to comply is not subject
to penalty. Further, their failure to comply does not relieve
you of your obligations unless you can prove you could not prevent
their misconduct.
Exposure to hazardous materials
More than 30 million workers are potentially
exposed to an estimated 650,000 existing hazardous chemical products
and 100s of new ones introduced annually. The Hazard Communication
Standard (HCS) ensures that chemical hazards are evaluated and
information about the hazards is communicated to employers and
employees.
The HCS is the most frequently cited OSHA standard.
The HCS makes information available about the hazards and the
recommended precautions for safe use. Employers have the information
necessary to design an appropriate protective program, and employees
have information necessary to understand the hazards involved
and take steps to protect themselves.
HazCom Compliance
Hazard Determination
- You must systematically determine the hazardous materials you
use.
Labeling - You must identify the material and
have appropriate hazard warnings on all containers of hazardous
materials, except temporary transfer containers.
Material Safety Data Sheets (MSDSs) - You must
keep MSDSs for all hazardous materials present in the workplace.
Employee Training
- You must provide employees who work with hazardous materials
initial training and added training when new hazards are introduced
into the workplace. Training includes, among other things, an
explanation of the law and your written hazard communication plan.
The adequacy of your training is tested by your workplace practices
and your employees' responses to an OSHA inspector's inquiries.
Written Hazard Communication Plan
- Your plan must detail how you will comply with each requirement
of the law. It must list all hazardous materials and contain copies
of the MSDSs.
Record keeping - You must make available your
hazard communication plan to the DOL and to employees upon written
request.
Employee Rights
- Employees have the right to the following:
- Have available and obtain copies of MSDSs
for hazardous material for which there is a foreseeable exposure.
- Receive training on chemical hazards.
- Obtain your plan within 15 work days of
a written request.
- File a complaint with the DOL regarding
a violation of the HCS.
- Exercise all the above rights without fear
of discrimination and file a complaint with the DOL if discrimination
occurs. You cannot require an employee to waive any OSHA rights
as a condition of employment.
New OSHA directive
A new directive updates and clarifies several
long-standing requirements, making your compliance easier. These
updates include the following:
- You may provide MSDSs to employees through
computers, microfiche machines, the Internet, CD-ROM and fax machines.
- If you use electronic means, you must ensure
that 1) Reliable devices are readily accessible at all times;
2) Employees are trained in the use of these devices; 3) There
is an adequate backup system; and 4) The system is part of the
overall hazard communication plan.
- Hard copies must be available to employees
and to medical personnel.
- You will only be cited for the use of consumer
products if you are using the product in a way inconsistent with
the manufacturer's intentions, or the frequency or duration of
your use greatly exceeds an ordinary consumer's use.
For example, windshield wiper fluid, which
contains methanol, is meant to be used in a closed system and
sprayed onto the windshield for cleaning. An employee using windshield
wiper fluid on a daily basis to clean windows or other surfaces
is covered by this standard because that use differs from the
manufacturer's intended purpose and the frequency and duration
of exposure exceeds that of an ordinary consumer.
To get more information
The directive's appendices include guidance
on the completeness of MSDSs and
a sample written hazard communication/training program. You can
access the directive through the OSHA home page on the Internet
at http://www.osha.gov under "Other OSHA Documents"
and "Directive."
Copies are also available through the OSHA
Publications Office at 202-219-4667 or Fax 202-219-9266. Additional
information is available in a booklet, "Chemical Hazard Communication,"
and a program highlight sheet on "Hazard Communication."
Both are available through "Publications" through the
OSHA home page or from the Publications Office.
Workplace injuries/illnesses
Recent statistics are sounding a safety alarm
for rebuilders. Private employers reported 6.2 million injuries/illnesses
during 1996 - 7.4 per 100 full-time workers. The good news is
that this was a 5% decrease from 1995 and the lowest rate since
the Bureau of Labor Statistics began reporting this information
in the early 1970s.
The bad news is that manufacturing had the
highest rate - 10.6 per 100 full-time workers. Of the 6.2 million
non-fatal injuries/illnesses, nearly 5.8 million were injuries
that resulted in either lost work time, medical treatment and
first aid, loss of consciousness, restriction of work, or job
transfer. Mid-size manufacturers - 50 to 249 employees - had the
highest rate of injuries.
Manufacturing accounted for 70% of the 439,000
newly reported cases of occupational illness in 1996. Of those,
64% involved repeated trauma, such as carpal tunnel syndrome and
noise induced hearing loss.
Lost workday cases
About 2.8 of the 6.2 million injuries/illnesses
were lost workday cases that required recuperation away from work,
restricted duties at work, or both. While there has been a decline
for six straight years in the injuries involving time away from
work, injuries resulting in work restrictions have slightly increased.
Restrictions include reduced hours, temporary job change, or temporary
physical restrictions. Manufacturing has more than double the
national work restrictions rate.
Associated legal risks
These injuries are costly in terms of workers'
compensation benefits and lost productivity. They often raise
legal issues as you attempt to comply with your obligations under
the American With Disabilities Act (ADA) and the Family and Medical
Leave Act (FMLA). These laws require you to accommodate employees
who have a qualified disability and to provide unpaid time off
to employees with a "serious health condition."
The lion's share of my practice is spent assisting
employers in navigating these legal shoals. In 1998, I have assisted
several engine rebuilders in taking steps to minimize the potential
for lawsuits by employees on (or coming off) workers' compensation
leave. Every single worker's compensation injury subjects you
to a subsequent claim that you transferred, demoted, disciplined,
or discharged the employee for: 1) Retaliation for filing the
worker's compensation claim; 2) Because of a disability; or 3)
In violation of the FMLA.
There is no time more critical to call your
employment lawyer than when dealing with an employee injured on-the-job.
You simply cannot rely on turning these matters over to your workers'
compensation carrier and resting peacefully. Remember that close
to 40% of the discrimination claims filed are disability claims!
These are not your workers' compensation carrier's problem.
High safety risks
Back Injuries - Back injuries cause the greatest
concern. In fact, the number one alleged ADA "disability"
is a bad back. Back injuries cost employers millions of dollars
and employees untold pain and suffering. The following statistics
show the high risk:
- More than 1 million employees suffer back
injuries annually.
- Back injuries account for one of five workplace
injuries/illnesses.
- Four of five back injuries are to the lower
back.
- Twenty-five percent of all worker compensation
claims involve back injuries.
- Three of four back injuries occur while
the employee is lifting.
- An estimated one-third of compensable back
injuries could be prevented through better job design.
Play offense
Take steps to prevent lifting injuries through
administrative and engineering controls. Administrative controls
include:
- Training in lifting techniques to minimize
stress on the lower back.
- Physical conditioning/stretching programs
to reduce muscle strain.
- Engineering controls. Engineering controls
include:
- Reducing the size/weight of the object
lifted.
- Adjusting the height of a pallet or shelf
(lifting below knee height or above shoulder height increases
the risk of injury).
- Installing mechanical aids such as pneumatic
lifts, conveyors and/or automated materials handling equipment.
To get more information on preventing back
injuries, order Work Practices Guide for Manual Lifting, published
by the National Institute for Occupational Safety and Health.
Order NIPS PB 821-789-48 for $26 (paper) or $17 (microfiche) from
the National Technical Information Service, 5285 Port Royal Road,
Springfield, VA 22161.
Eye injury
An estimated 1,000 work-related eye injuries
occur daily at a cost of $300 million annually in lost production
time, medical expenses and workers' compensation benefits. No
dollar value can measure the personal toll on employees. The following
statistics about these injuries are informative:
- Seventy percent occur from flying or falling
objects or sparks striking the eye; 60% of the objects are estimated
to be smaller than a pinhead.
- Twenty percent are by contact with chemicals.
- Forty percent are to craft workers, e.g.,
mechanics.
- More than one-third are to workers such
as assemblers, sanders and grinding machine operators.
- Twenty percent involve laborers.
- Fifty percent occur in manufacturing.
Eye protection pays
An estimated 90% of eye injuries can be prevented
through the proper use of protective eye wear. The eye wear must
be suitable for the type of hazard encountered and properly fitted.
Consider the following:
- Objects or chemicals going under or around
eye protection occurred to 94% of those injured.
- Nearly 20% of the injured employees wearing
eye protection wore face shields or welding helmets; only 6% wore
goggles.
- The best eye protection is wearing goggles
with face shields.
- Although most employers furnish eye protection
at no cost, about 40% of their workers do not receive information
on the proper use of the eye wear.
- Training and education are the keys to
prevention.
To get more information contact OSHA safety
and health experts. They can explain mandatory requirements for
effective eye protection and answer your questions. Contact your
nearest OSHA area office. Need help locating that local office?
Call an OSHA regional office at the U.S. Department of Labor in
Boston, New York, Philadelphia, Atlanta, Chicago, Dallas, Kansas
City, Denver, San Francisco or Seattle.
Carbon monoxide poisoning
Carbon monoxide - a colorless, odorless, tasteless
gas - is one of the most common industrial hazards and a potential
danger to many in your industry. The OSHA standard for exposure
to carbon monoxide prohibits workers' exposure to more than 35
parts of gas per million parts of air (PPM), averaged over an
eight-hour workday. There is also a ceiling limit of 200 PPM measured
over a 15-minute period.
To minimize the risk of carbon monoxide poisoning
undertake the following:
- Install an effective ventilation system
to remove poisonous carbon monoxide.
- Maintain equipment to reduce the formation
of carbon monoxide.
- Switch from fossil fuel-powered equipment
to battery-powered machinery when possible.
- Provide approved respirators for emergency
use.
- Install carbon monoxide monitors or regularly
test air in appropriate areas.
- Provide preplacement and periodic medical
examinations for workers who may be exposed to carbon monoxide
and transfer affected workers to other jobs where possible.
- Train workers in the related hazards and
the proper use of respirators.
- Train employees to report any potential
exposure condition.
Exposure to asbestos
An estimated 1.3 million employees face asbestos
exposure on the job. In the automotive industry, employees most
likely to be exposed are those repairing brakes and clutches.
OSHA regulations that pertain to asbestos exposure in general
industry set a maximum exposure limit and include provisions for
engineering controls and respirators, protective clothing, exposure
monitoring and workplace practices.
If your employees are exposed to asbestos,
you can obtain more information from the following two sources:
- The General Industry Asbestos Standard,
Part II, Health Standards, Stock
No. 869-017-00110-4, can be ordered for $16 from the Superintendent
of Documents, Government Printing Office, Washington, D.C. 20402-9325,
202-783-3238.
- Asbestos Standard for General Industry,
a pamphlet summarizing the rule can be obtained by sending a self-addressed
mailing label to OSHA Publications Office, Room N-3101, Washington,
D.C. 20210, 202-219-4667.
Your local OSHA office may loan appropriate
slide programs as well.
Methylene chloride
On January 10, 1997, OSHA issued a standard
that lowered the limit on worker exposure to methylene chloride
(MC). OSHA considers MC to be a potential occupational carcinogen,
and exposure may also worsen symptoms of heart disease. If MC
is used in the workplace, you must monitor employee exposure and
comply with notification and record keeping requirements.
If you are subject to the above standard (29
C.F.R. 1910.1052(d)), access it at OSHA's Internet website (http://www.osha-slc.gov).
Other information can be obtained from OSHA's Office of Information
at 202-219-1851.
OSHA has developed several compliance fact
sheet guides to assist small employers in understanding and complying
with the methylene chloride standard. These can also be obtained
through the government office or their website.
Other sources of information
- Communicate with your trade associations
which include the Production Engine Remanufacturers Association
(PERA), http://www.pera.org, 847-439-0491, the Engine Rebuilders
Association (AERA), http://www.aera.org, 847-541-6933) and the
Automotive Parts Rebuilders Association (APRA), http//www.apra.org,
703-968-2772.
- Become familiar with other Internet websites.
Examples of such websites include:
CCAR-GreenLink
- http://www.ccar-greenlink.org/documents/cat1800 - for documents
on occupational safety and health.
CARQUEST -http://www.carquest.com/osha.htm.
SAFTEK - http://www.saftek.com/safety.htm.
The UAW's view
- http://www.uaw.org/breaktime/healthsafety.
You can also check out OSHA's consultation
service at http://www.osha.gov/oshprogs/consult.htm. Free consultations
are funded by OSHA through state governments. These services primarily
assist smaller businesses with compliance. Consultation is separate
from the OSHA inspection function. You should also ask others
in the industry about their experience with the government consultation
service.
Share experiences and information with others
in the industry. All will benefit from the favorable reputation
and goodwill that accompanies a safe industry.
The bottom line
Unsafe and unhealthy conditions feed low morale,
which ultimately produces poor quality, decreased production and
employees turning to labor organizations to protect them. Avoid
those results, which are not healthy for you or your customers.
Keep workplace health and safety at the top of your "To Do"
list.