A request for clarification was presented to the Occupational Safety and Health Administration regarding a case of injury to a worker purposely caused
Bob Eckhardt
A request for clarification was presented to the Occupational Safety and Health Administration regarding a case of injury to a worker purposely caused by other employees in a nonwork situation. Specifically, an employer posed the question of whether friendly, locker-room horseplay that resulted in injury after turning violent should be considered an OSHA recordable incident.
The incident involved two employees who arrived at a construction trailer and began changing into work clothes. Friendly banter escalated to physical sparring, which resulted in one employee stabbing the other. In a February letter of interpretation, OSHA ruled that the injury was to be considered a recordable workplace incident. Exemptions for workplace violence are provided as follows:
The Recordkeeping rule contains no general exception, for purposes of determining work relationship, for cases involving acts of violence in the work environment. However, some cases involving violent acts might be included within one of the exceptions listed in section 1904.5(b)(2). For example, if an employee arrives at work early to use a company conference room for a civic club meeting and is injured by some violent act, the case would not be work-related under the exception in section 1904.5(b)(2)(v).
OSHA has maintained a position that all incidents occurring on the employer’s premises Û except for certain exclusions already specified in the standard Û are the responsibility of the employer. Injuries and illnesses not considered recordable include the following:
| 1904.5(b)(2) | Recording injuries and illnesses is not required if÷ |
|---|---|
| (i) | At the time of injury or illness, the employee was present in the work environment as a member of the general public rather than as an employee. |
| (ii) | Injury or illness involves signs or symptoms that surface at work, but result solely from a non-work-related event or exposure that occurs outside the work environment. |
| (iii) | Injury or illness results solely from voluntary participation in a wellness program or in a medical, fitness, or recreational activity such as blood donation, physical examination, flu shot, exercise class, racquetball, or baseball. |
| (iv) | Injury or illness is solely the result of an employee eating, drinking, or preparing food or drink for personal consumption (whether bought on the employer’s premises or carried in). For example, if an employee is injured by choking on a sandwich while in the employer’s establishment, the case would not be considered work-related. Note: If the employee is made ill by ingesting food tainted by workplace contaminants (such as lead), or gets food poisoning from food supplied by the employer, the case would be considered work-related. |
| (v) | Injury or illness is solely the result of an employee performing personal tasks (unrelated to their employment) at the establishment outside assigned working hours. |
| (vi) | Injury or illness is solely the result of personal grooming, self medication for a non-work-related condition, or is intentionally self-inflicted. |
| (vii) | Injury or illness is caused by a motor vehicle accident and occurs on a company parking lot or company access road while the employee is commuting to or from work. |
| (viii) | Illness is the common cold or flu. Note: Contagious diseases such as tuberculosis, brucellosis, hepatitis A, or plague are considered work-related if the employee is infected at work. |
| (ix) | Illness is a mental disorder. Mental illness will not be considered work-related, unless a worker voluntarily provides the employer with an opinion from a physician or other licensed health-care professional, e.g., psychiatrist, psychologist, psychiatric nurse practitioner, stating that the employee has a mental illness that is work-related. |
More information regarding exclusions is available online at OSHA.gov by entering 29 CFR 1904.5 (Determination of work-relatedness).
OSHA CITATIONS
The most recent sorted data for violations spans October 2007 through September 2008. OSHA cited 17 Concrete Block and Brick [SIC 3271] plants during this period and 117 Concrete Products [SIC 3272] plants. Citations were issued primarily for lockout/tagout, respiratory protection violations, HazCom violations, and forklifts. Interestingly, OSHA issued significant wiring and electrical violations among Concrete Products facilities, likely due to portable electrical tools and systems applications used in prestressed/precast production. Listed below are standards cited by the federal agency for three or more violations under SIC 3271 Concrete Block and Brick, followed by 10 or more under SIC 3272 Concrete Products.
| Standard | # Cited | $ Penalty | Description |
|---|---|---|---|
| 19100147 | 9 | 18180 | Control of hazardous energy (lockout/tagout) |
| 19100178 | 8 | 1300 | Powered industrial trucks |
| 19101200 | 7 | 0 | Hazard Communication |
| 19100134 | 6 | 9675 | Respiratory Protection |
| 19100023 | 4 | 2138 | Guarding floor and wall openings and holes |
| 19100212 | 4 | 2788 | General requirements for all machines |
| 19100219 | 4 | 1335 | Mechanical power-transmission apparatus |
| 19101000 | 4 | 9300 | Air contaminants |
| 19100146 | 3 | 716 | Permit-required confined spaces |
| 19100134 | 65 | 24164 | Respiratory Protection |
| 19100305 | 54 | 41960 | Wiring methods, components, and equipment for general use |
| 19101200 | 52 | 21965 | Hazard Communication |
| 19100147 | 49 | 38304 | Control of hazardous energy (lockout/tagout) |
| 19100178 | 46 | 32243 | Powered industrial trucks |
| 19100179 | 38 | 26810 | Overhead and gantry cranes |
| 19100023 | 36 | 39481 | Guarding floor and wall openings and holes |
| 19100215 | 30 | 14590 | Abrasive wheel machinery |
| 19100095 | 29 | 21565 | Occupational noise exposure |
| 19100212 | 27 | 18467 | General requirements for all machines |
| 19100184 | 24 | 24312 | Slings |
| 19100132 | 21 | 13483 | General requirements |
| 19100303 | 21 | 23168 | General requirements |
| 19100213 | 19 | 18191 | Woodworking machinery requirements |
| 19100146 | 18 | 15740 | Permit-required confined spaces |
| 19100180 | 18 | 18750 | Crawler locomotive and truck cranes |
| 19100022 | 16 | 12145 | General requirements |
| 19100106 | 16 | 11426 | Flammable and combustible liquids |
| 19100107 | 14 | 7285 | Spray finishing using flammable and combustible materials |
| 19100219 | 14 | 12670 | Mechanical power-transmission apparatus |
| 5A0001 | 12 | 25540 | General duty clause |
| 19100037 | 11 | 4158 | Maintenance, safeguards, and operational features for exit routes |
| 19100157 | 11 | 1905 | Portable fire extinguishers |
| 19100253 | 11 | 11226 | Oxygen-fuel gas welding and cutting |
| 19100304 | 11 | 14000 | Wiring design and protection |
| 19101000 | 10 | 3975 | Air contaminants |
For Concrete Products facilities, electrical citations under 1910.0305 [54] and 1910.0304 [11] resulted in fines totaling $44,960, the costliest combined group of similar violations. That sum ties the largest number of citations for a single category Û respiratory protection Û under Concrete Products SIC 3272.
LOCKOUT/TAGOUT PROGRAM CHECKLIST
The most common OSHA citation among Concrete Block and Brick operations and fourth in frequency of violation by Concrete Products facilities is Lockout/Tagout (LOTO). The chief cause of LOTO citations is a lack of policy, followed by failure on the part of field personnel to comply with policies that do exist. A complicated and lengthy LOTO standard impedes policy implementation by employers, as it is difficult to follow in field applications. Conditions facilitating LOTO compliance can be enumerated as follows:
| 1. | Company has a verifiable system in the form of a written LOTO policy. |
| 2. | Policy is reviewed annually with proper documentation of each review. |
| 3. | Locks are identified with a tag, indicating company name, person using the lock, date, and time the lock is applied. |
| 4. | A LOTO sheet or other system is maintained to document control of sources to be locked, as well as personnel associated with the lockout/tagout routine. |
| 5. | LOTO training is documented and verifiable. |
| 6. | Residual, or stored energy, is relieved between applying the locks and beginning work. |
OSHA requires all personnel to follow a series of LOTO steps prior to beginning work and a second series of steps to remove the locks and restore the equipment to service. Applying locks to the controls of a system to be repaired or maintained has been made needlessly burdensome and, thus, remains an OSHA citation trap.