OSHA revises MSD reporting requirements

When OSHA revised its reporting requirements in 2001, section 1904.12(a) of that rule would have required the employer to check the MSD column on the OSHA 300 Log if an employee experienced a work-related musculoskeletal disorder. That controversial item on the OSHA 300 was put on hold and has finally been deleted. Although MSDs must still be reported if they meet the general recording criteria, a separate MSD tally is not required for OSHA's statistical purposes as previously proposed.

New safety and environmental disclosure requirements

The new procedures and policies contained in the Sarbanes-Oxley Act go farther than financial reporting for publicly held entities. Companies will be required to report operations incurring a safety, environmental, or property loss or any such incident that may “significantly impact” the organization's financial soundness. By virtue of this requirement, Environmental, Safety, and Health (EHS) professionals may be held responsible for disclosing that information. Accordingly, EHS professionals and managers are advised to meet with their upper management and corporate counsel to determine and document the company's communication structure. As the president or CEO usually gives final approval for all public disclosures, including statements regarding EHS, careful documentation of EHS issues should be provided according to policy by safety professionals to the person responsible for releasing company information. Currently, many large companies address EHS issues in a section of their annual report appearing under the signature of the senior EHS professional; the statement concerning “green” issues is typically a flattering one. The new policy will require a complete and accurate disclosure.

Also included in the new law are protective measures for whistleblowers. Both private and public companies are subject to new criminal and civil penalties relating to fraud, conspiracy, and interfering with investigations. In response to a claim by a whistleblower, a company will be required to defend its actions. A whistleblower reporting corporate fraud is entitled to job reinstatement, back pay, and damages. Furthermore, the criminal provision makes it a felony to retaliate against a protected whistleblower.

Latest hours-of-service rules getting mixed reviews

Citizens for Reliable and Safe Highways (CRASH) and Parents Against Tired Truckers (PATT) are challenging the recently issued Federal Motor Carrier Safety regulations for drivers' hours of service (HOS). A petition filed over the summer in the U.S. Court of Appeals for the District of Columbia, asks the court to review the final hours-of-service rule issued in April 2003 by the Federal Motor Carrier Safety Administration (FMCSA). The single-page petition is a first step in legally challenging the rule.

The new HOS rule, supported by the American Trucking Association and other transportation groups, varies only slightly from the existing standard. As reported in last month's column, the new rule allows drivers to work 11 hours after 10 consecutive hours off-duty. Operators may not drive beyond the 14th hour after coming on duty, following 10 hours off duty. The current ruling allows 10 hours of driving within a 15-hour on-duty period after eight hours of off-duty time.

Similar to existing rules, drivers may not continue working after being on-duty for 60 hours in a seven-consecutive-day period or 70 hours in an eight-consecutive-day period. This on-duty cycle starts again whenever a driver takes at least 34 consecutive hours off duty.

Local delivery drivers, who routinely return to the plant after each delivery and are then released from duty at the plant, may have an increased on-duty period of 16 hours once during any seven-consecutive-day period. The 16-hour exception takes into consideration legitimate business needs, provided the exception does not jeopardize safety.

Rules for the driver's daily log remain unchanged. Those drivers operating within a 100 air-mile radius of the their normal work location, who return to that location and are released from duty within 12 hours, will keep time cards as allowed under the current rules.

Particulate matter (PM10) now a key pollutant in Canada's clean air agenda

The Government of Canada has added the key pollutants comprising smog to Schedule 1 of the Canadian Environmental Protection Act, 1999 (CEPA). The announcement includes particulate matter less than or equal to 10 microns (PM10) and ozone. The Order adding PM10 precursors and ozone as well as its precursors to CEPA 1999, Schedule 1 gives the Government of Canada the authority to take action to meet its federal commitments under the Clean Air Agenda.

Ergonomics legislation inches forward

OSHA continues to formulate ergonomic regulations and now has effective rulings — or regulations in the making — that apply to the beef- and poultry-processing industries, nursing home industry, and retail grocery stores. OSHA continues to threaten application of the General Duty Clause to all industry, though problems are inherent in the agency's own compliance to that ruling.

The General Duty Clause delineates the employer's obligation to “furnish to each of his employees employment and a place of employment, which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.” This clause from the OSHA act is utilized to cite serious hazards where no specific OSHA standard exists to address the problem, as in the case of ergonomic hazards.

When OSHA uses the General Duty Clause to cite an employer, it must be demonstrated that:

1. The employer failed to keep the workplace free of a hazard to which employees were exposed.
2. The hazard was causing or likely to cause death or serious physical harm.
3. The hazard was recognized.
4. A feasible means of abatement for that hazard exists.

The inspector may have difficulty proving these four points merely on the basis of observation and an opinion regarding the safety hazard. Therefore, an OSHA inspector will ask to see the log of occupational injuries and illnesses to identify any long-term MSD incidents that would point to “serious physical harm.” A recognized hazard is thereby automatically verified by virtue of a log entry identifying a long-term disability. The inspector has only to review the situation causing the incident to determine if appropriate measures were taken to investigate the occurrence and implement the means to prevent a recurrence. The inspector will be particularly interested if two or more incidents have occurred from the same job, since this would indicate a recognized hazard that was not eliminated. If substantial effort has not been invested to prevent recurrence following the original incident, then the employer has just made the Inspector's day.

Society publishes safety handbook

The American Society of Safety Engineers (ASSE) recently published an updated, hardcover edition of Basic Safety Administration: A Handbook for the New Safety Specialist by Fred Fanning, CSP. The handbook provides an introduction to the key elements of a safety program for new or collateral-duty safety specialists with limited professional training. The book explains safety fundamentals such as risk management, human error, Occupational Safety and Health Administration (OSHA) compliance, standards and codes, inspections, accident investigation, fire prevention, and personal protective equipment. In addition, it covers safety program basics related to hazard communication, confined spaces, bloodborne pathogens, control of hazardous energy, ergonomic injuries, and fleet management. The handbook also introduces OSHA's Voluntary Protection Program. New chapters are included on security programs and staffing, plus a glossary of safety terms and 22 appendices providing program checklists, examples, and sample evaluation forms.

ANSI revises the eye and face protection standard

Marking the first change in this standard since 1989, Z-87.1 2003 — Practice for Occupational and Educational Personal Eye and Face Protection Devices goes into effect this month. The standard will have little impact on the industry beyond the need for producers to confirm with their suppliers that all protective eyewear meets the revised standard. Primarily, the revised standard addresses testing and approval criteria, marking, description and types in addition to requirements for machinery operations, material welding and cutting, and assembly functions.