Compliance OSHA Advisor

Needlesticks Down Dramatically Thanks to 2001 Rule CONTENTSNewsWorkers Concerned About Shop Towel Hazards..................12Cal/OSHA Enforcement Holds Employers Accountable............12Washington Watch..............2Things Are Getting Sticky for Hershey Logistics Contractor......2DOT Proposes Guidelines to Reduce Vehicle Distractions........2U.S. Sentences Former Exec in Big Branch Mine Disaster ......2Soldiers Will Participate in FedStudy of Supplements................2Labor Dept. Survey Would Assess Employee ‘Voice’..............8

Compliance Report ............3What Is Safety Culture and How Do You Get It? Diverse Pathways Lead to Better Safety Culture ............................3Was Failure to Attend Half of Training Classes Grounds for Termination?............................6

Trainer’s Corner................7Good Housekeeping Practices for the Warehouse

Ask the Experts..................8Contractor SafetyMedication in the Workplace

Featured Resource............9Are Pests Getting Pesky? Protect Your Workplace

From the States..................9News from Michigan, New Jersey,California, Maryland, Georgia, Illinois, New Hampshire, and Minnesota

March 26, 2012 www.blr.com Issue 680

OSHA Whistleblower Program Gets Higher Profile

The federal law enacted to protecthealthcare workers from being stuckby needles has significantly reducedthe number of such injuries. Accordingto researchers from the University ofVirginia (U.Va.) School of Medicine,fewer injuries reduce the possibilityfor exposure to bloodborne pathogens.

While other factors may have con-tributed, U.Va. researcher Elayne Kornblatt Phillips called the effect ofthe Needlestick Safety and PreventionAct “very significant.” She and col-leagues examined 10 years of injuries.

Needlesticks were on the rise before2001 when the law took effect. Thenumber dropped by about 38 percentthat year and stayed well below previ-ous levels through 2005, the last yearstudied.

The law mandated changes to OSHA’sbloodborne pathogens standards. It required employers to provide safer devices, maintain records of injuries, and involve employees in device selection. The findings ap-peared in the New England Journal of Medicine. [14.50, 81, 90]

OSHA is undertaking a major restruc-turing of the Whistleblower ProtectionProgram. The office will now reportdirectly to the Assistant Secretary, Dr. David Michaels, who headsOSHA. The whistleblower initiativewas formerly under the Directorate of Enforcement Programs.

The restructuring was first announcedlast August as part of the agency’s plan for bolstering enforcement of

21 whistleblower laws under its juris-diction. In addition to the change at the national office, OSHA haslaunched pilot projects to evaluatechanges in 10 field regions that couldfurther enhance whistleblower protection.

Michaels says the changes “demonstratethe agency’s steadfast commitment tostrengthening a program that is criti-cally important to the protection ofworker rights.” [47, 138.50]

New Hours-of-Service Rule Spawns LawsuitsThe new federal rule for driver hoursof service (HOS) has not made adequate improvements, according to some safety organizations. A lawsuithas been filed by two truck drivers and the groups Advocates for Highwayand Auto Safety, Public Citizen, andTruck Safety Coalition.

They seek judicial review of the rule,issued in December by the U.S. Department of Transportation’s FederalMotor Carrier Safety Administration(FMCSA). The parties claim the final

rule did not reduce the 11-hour limiton consecutive driving to 10 hours, de-spite FMCSA’s acknowledgment that10 is a preferred option.

Another legal challenge to the rule hasbeen issued by the American TruckingAssociations (ATA), which has askedthe D.C. Court of Appeals to reviewthe law.

Said ATA President Bill Graves, “Therules that have been in place since

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2 © 2012 BLR®—Business & Legal Resources (#680)

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Washington WatchThings Are Getting Sticky For Hershey Logistics ContractorOSHA has cited Exel, Inc., for nine violations—including six willfuls—at the Eastern Distribution Center III. The Palmyra, Pennsylvania, site is owned by the Hershey Company and operated by Exel. Proposed penalties total $283,000.

OSHA has also cited SHS Group, LP, doing business as SHS Staffing Solutions, for one violation with a proposed penalty of $5,000.

An inspection was conducted in response to a complaintfiled on behalf of a group of foreign students workingsummer jobs under a Department of State J-1 visa program. According to OSHA, the complaint alleged a number of abuses of the visa program as well as exploitative and unsafe workplace conditions.

Exel is an Ohio-based contract logistics company.Under an arrangement with Exel, SHS hired the stu-dents to work at the Palmyra site repackaging Hersheycandies for promotional displays. Exel was responsiblefor recordkeeping in the Palmyra facility. The willful citations include a failure to record injuries and illnesseson the OSHA 300 log for 4 years. [47, 138.50, 143]

DOT Proposes Guidelines To Reduce Vehicle DistractionsU.S. Secretary of Transportation Ray LaHood has an-nounced the first-ever federally proposed guidelines to encourage carmakers to limit the distraction risk forin-vehicle electronic devices. The proposed voluntaryguidance would apply to communications, entertain-ment, information gathering, and navigation devices not required to operate the vehicle.

“Distracted driving is a dangerous and deadly habit on America’s roadways—that’s why I’ve made it a priority to encourage people to stay focused behind thewheel,” said LaHood. “These guidelines are a majorstep forward in identifying real solutions to tackle theissue of distracted driving for drivers of all ages.”

The guidance was geared toward light vehicles such ascars, pickup trucks, and minivans. The first phase of theproposal includes recommendations to reduce complex-ity and task length required by devices.

The changes would also limit:

• Operation to one hand only• Individual off-road glances to no more than 2 seconds• Unnecessary visual information in the driver’s field of view

• The amount of manual inputs required to operate the device

The proposal recommends disabling several “visual-manual” operations by drivers. Among these are textmessaging, Internet browsing, social media browsing,destination entry by address, 10-digit phone dialing,and displays to the driver of more than 30 charactersunrelated to driving.

More information is available at www.distraction.gov. [39, 41.60]

U.S. Sentences Former Exec In Big Branch Mine DisasterHughie Elbert Stover, the chief of security at the formerMassey Energy Upper Big Branch Mine, has been sentenced to 3 years in prison in connection with theApril 2010 explosion at the West Virginia site. U.S. Attorney Booth Goodwin II made the announcement.

Stover led security at Big Branch and at least two otheroperations at the time of the accident, which killed 29 miners and injured two others. He was convicted inOctober of making false statements to federal agentsand obstructing a federal investigation.

The agents were investigating allegations that securityguards routinely notified mine personnel when MSHA inspectors arrived at the mine. Stover falselydenied such practices and, according to the U.S. Department of Justice, personally instructed securityguards to let mine personnel know whenever inspec-tors arrived. [47, 95, 177, 196, 202.50]

Soldiers Will Participate In Fed Study of SupplementsSoldiers will be the subjects of the first U.S. govern-ment study of the health impact of the popular body-building supplement DMAA (1,3-dimethylamylamine).The goal, according to the army news source Stars and

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© 2012 BLR®—Business & Legal Resources (#680) 3

Safety culture has been described in many ways, including how an organization operates when no one is watching. All organizationshave some degree of safety culture.The challenge for leaders is to de-termine that level, decide wherethey want to take it, and chart a path to get there.

This Compliance Report examinestwo very different paths to a cultureof safety. One is the robust safetyand health process at a global metalmanufacturing company. The otheris an innovative idea for improvingsafety performance by training em-ployees to become more mindful ofhow they work.

KENNAMETAL: 100% SafeKennametal, Inc., is a global supplier of tooling, engineeredcomponents, and advanced materi-als used in manufacturing. The metalworking giant employs nearly12,000 people and operates in more than 60 countries around theworld. The business was founded in 1938 by metallurgist Philip M.McKenna, who created a tungsten-titanium alloy for cutting tools.

Kennametal’s patented process pro-duces tough materials for demand-ing applications including mining.Kennametal is a leader in the devel-opment of quick-change toolingsystems known for their versatility,speed, and accuracy.

According to EHS Manager ZanPersichetti, the company’s safetyapproach has been taken to a higherlevel over the past few years. Sheexplains, “That change occurredwhen our senior leadership tookcontrol of safety and established

an executive level committee thatsets direction, goals, and targets.”

Another important factor was theadoption of the concept 100% Safe.Like many business leaders, theKennametal team talked often aboutstriving for zero injuries. But in onemeeting, the discussion centeredaround the idea that aiming for zerois a negative approach because it focuses on incidents.

Why not focus instead on becominga company that operates in a 100% Safe manner? “From that day forward that’s what we’ve done and we’ve never looked back,”says Persichetti.

Management-Based SafetyThe Kennametal safety culture isrooted in an evolving process calledmanagement-based safety, or MBS.It provides a variety of tools and activities to help build a consistent,standardized safety culture.

Required MBS activities are con-ducted by leaders, managers, supervisors, and employees. Theprogram has been introduced in all regions in order to ensure thatKennametal employees speak thesame safety language. That includesthose who work in sales, administra-tion, and other nonmanufacturingsettings. MBS tools include safetytours, safety talks, safety reviews,stand-downs, stand-ups, and more.

For example, all managers are required to prepare and deliver amonthly safety talk. When this requirement was introduced a fewyears ago, Persichetti says it was anew concept to many. But leadersgot on board enthusiastically. Theyalso participate in site-safety eventsand conduct training.

Safety leadership teams, whichmeet monthly, are also requiredunder MBS. These exist in every facility and area. Safety tours arewalkarounds in which groups of managers, supervisors, and em-ployees look for hazards. They also look for employees who areusing best safety practices. Individ-uals are rewarded with a safety star,a token of appreciation.

Involve and RecognizeAnother MBS tool is known as find-and-fix, a way to get employeesinvolved in identifying and mitigat-ing risks. They are encouraged to make the fixes themselves. Ifnecessary, they seek help from a supervisor or maintenance staffmember. Participants are recognizedand rewarded for their participation.

Notes Persichetti, “With MBS,there’s no confusion about what’sexpected.” The tools and the fre-quency with which they are to beused are understood. In fact, everyemployee has a daily safety check-list they consult before their jobtask or shift begins. The checklistreminds them of the actions andpractices they should be aware ofthroughout the day.

The checklist changes depending on the activities performed. For an office worker, for example, thedaily safety checklist might includestatements like:

• I will ensure that floor mats and rugs in and near my office are flat on the floor and in goodcondition.

• I will not talk on my cell phonewhile using stairs or walking toand from meetings.

• I will always use the handrailwhen traveling stairs.

Maximizing MetricsOne hallmark of a strong safety culture is the push for continuous

Compliance Report

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What Is Safety Culture and How Do You Get It?Diverse Pathways Lead to Better Safety Culture

4 © 2012 BLR®—Business & Legal Resources (#680)

improvement. Kennametal uses avariety of metrics to ensure that itssafety program is moving in theright direction. One was a recentsafety culture assessment to captureemployees’ opinions of safety at the company.

“This was definitely one of the most valuable exercises we’ve everconducted,” says Persichetti. “Onething we learned is that we were expecting our employees to identifyhazards and eliminate or managethem, but we must give them thetools in order to do that.”

Another finding from the assess-ment was that the focus on trailingsafety indicators might have a negative effect on behavior. Persichetti says paying attention to DART and recordable rates could make employees less enthusiastic about safety.

Kennametal saw that some siteleaders were putting a positive spin on safety, getting employeesinvolved, and successfully recogniz-ing their participation in upstreamsafety activities.

Today, the company is using thosepractices to develop a leading indicator program. The goal is to institutionalize the focus on positivesafety activities over trailing indica-tors like incident rates.

Another way Kennametal uses met-rics is to study the habits of world-class companies—both competitorsand peers—and benchmark safetyperformance against theirs. Theyuse criteria developed by the National Safety Council to gaugeprogress toward best-in-class safety performance.

One common practice among theworld’s safest companies is to address worker protection at everyexecutive-level meeting. So Kennametal developed a simpletemplate to help leaders report onwhat they’ve done to be 100% Safewithin their departments. Persichettiand others believe that keeping the

message front and center has helpedchange outcomes throughout the organization.

Benchmarking also revealed that organizations with a strong safetycommitment apply the same level ofresources to solving safety prob-lems that they apply to other areas.

“I believe Kennametal does well at this. The same degree of detailand focus is applied to a safety inci-dent as any other type of businessupset,” says Persichetti. Informationabout the incident is immediatelycommunicated through the properchannels, and a search for rootcauses is launched.

UNIVERSITY OF CALIFORNIA, IRVINE: MindfulnessIt’s well known that workers whoperform the same tasks day afterday tend to lose focus on the haz-ards because the work becomes routine. Marc Gomez has some innovative ideas about how to turn that around by training em-ployees to become more consciousabout what they’re doing and the attendant risks.

Gomez is assistant vice chancellorfor facilities management and environmental health and safety atthe University of California, Irvine(UCI). The university is known for a strong commitment to under-graduate education and top researchand graduate programs. Its newschool of law graduates its firstclass this year.

According to Gomez, safety is in-creasingly integrated into campusculture. One means to do this is to identify an on-site safety repre-sentative within each of the approximately 800 work units onthe vast campus. The EHS staffworks with these individuals to helpthem improve safety at their sites.

Another valuable resource is theuniversity’s EHS academic coordi-nators. These are staff membersfunded jointly by academic depart-ments and the EHS office. The

coordinator combines knowledge ofsafety and health with insight intothe work of the department to makerecommendations about procedures.Gomez says this model has con-tributed to UCI’s status as the campus with the lowest injury andseverity rates in the UC system.

Like other organizations with astrong safety culture, UCI is com-mitted to excellence in training. At the University of CaliforniaLearning Center employees receivetraining—both online and live—required by Cal/OSHA and by theuniversity. The center is a singlesource of training and a repositoryof who has been trained on what.

There’s a special emphasis on train-ing for the campus’s 450 labswhose employees routinely workwith biological, radioactive, chemi-cal, and other types of hazardousmaterials.

Lab training is structured around a12-module core safety curriculum.The EHS department partners withsite safety representatives to createtraining procedures specific to thework of individual labs. A newcourse called Creating Safety Culturein Your Lab was developed to meet

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Safety Culture: It’s About Action

National Transportation Safety Boardmember Robert Sumwalt believesthat safety culture starts at the top of an organization and extends toevery level. He suggests the followingattributes:• An environment in which employ-ees feel comfortable reportingsafety problems without fear ofretribution

• An insistence on following established procedures

• A management structure in whichthe chief safety officer reports directly to the CEO

It’s not enough to talk about priori-ties; action makes the difference.Sumwalt says many organizationsclaim that safety is their top priority,“but when we at the NTSB peel back and look after an accident, wefind otherwise.”

the specific needs of principal in-vestigators—individuals who leadresearch projects.

A separate curriculum with eightmodules has been developed forother (nonlab) workers. All employ-ees can log onto the training siteand take a quick self-assessmentthat determines what training isneeded to safely perform their jobs.

A Mindful ApproachAs a 30-year veteran of the safetyprofession, Gomez has given plentyof thought to the causes of injuries.“We do follow-ups and look closelyat the root causes. And we see themain cause of accidents is inatten-tion and a lack of mindfulnessabout one’s circumstances and sur-roundings. Workplace safety is astate of mind.”

He believes part of the problem isthe barrage of incoming informationfrom digital and nondigital sources.“It made sense to me that if wecould get people to be more mind-ful, and in the moment, it would reduce accidents.”

He evokes the image of an individ-ual walking through the parking lot glued to the cell phone. A tripand fall keeps the worker off the job for weeks.

The idea of applying mindfulness tosafety caught the attention of clini-cal psychologist Jessica Drew dePaz. She joined the EHS departmentabout 9 years ago. “The reason Iwas hired demonstrates Marc’s outside-the-box thinking,” she says.

Gomez had a staff of highly compe-tent safety professionals, but he waslooking for someone who couldhelp the department find new andbetter ways to reach people. Hehired Drew de Paz to oversee safetyand health training.

She had always been interested inthe concept of mindfulness. Learn-ing that inattention was a top causeof safety accidents inspired Drewde Paz and Gomez to secure fund-ing for research into this new andpromising area of training. They are

currently developing a mindfulnesscurriculum.

“I realized that we offer 60 safetytraining courses and none of themaddress this idea of staying in the moment,” says Drew de Paz.“To me it’s akin to physical exercise—you can be physically fit, but a trainer really shows youhow. We need to be shown how tobe mindful.”

In the MomentGomez and Drew de Paz discoveredthat mindfulness was at the heart of

stress-reduction work going on atthe UCI Susan Samueli Center forIntegrative Medicine. The Center’scourses may be integrated into theEHS training. Another resource isthe University of Washington,which has developed a mindfulness-based relapse model to assist peoplewith addiction.

What would mindfulness-basedsafety training look like and howwould it help people on the frontlines? Gomez points to campus

© 2012 BLR®—Business & Legal Resources (#680) 5

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Why It MattersA guideline produced by the American Institute of Chemical Engineers (AICE) answersthe question, “Why is safety culture important?” with:Management systems and their associated policies and procedures depend upon theactions of individuals and groups for their successful implementation…. The valuesof the group (e.g., corporation, plant, shift, team) help shape the beliefs and attitudesof the individual, which in turn, play a significant role in determining individual behaviors. A weak safety culture can be (and likely will be) evidenced by the actionsand inactions of personnel at all levels of the organization. For example, the failure of a critical interlock might have been caused by the mechanic who failed to calibrate the pressure switch and falsified the maintenancerecords. Alternatively, it might have been caused by the plant manager who deniedthe funding request to address staffing shortage in the instrument department.”AICE notes key attributes of a sound safety culture: • Espouse safety as a core value.• Provide strong leadership.• Establish and enforce high standards of performance.• Maintain a sense of vulnerability.• Empower individuals to successfully fulfill their safety responsibilities.• Provide deference to expertise.• Ensure open and effective communications.• Establish a questioning/learning environment.• Foster mutual trust.• Provide timely response to safety issues and concerns.• Provide continuous monitoring of performance.AICE recommends the following steps to address safety culture issues:• Create awareness. Learn about available tools and exercises (such as a culturesurvey) to identify issues that need to be addressed. Involve both corporate and siteleaders in your efforts.

• Identify a champion. While every member of the organization should be part of theculture-building process, a champion can help lead the charge, especially if thetransformation will be significant.

• Perform a gap analysis. Learn how your culture stacks up against the attributeslisted above. Identify the gaps and develop a risk-based response to closing them.

• Steward cultural change. Culture change cannot be mandated. The role of leadersis to inspire, enable, nurture and model acceptable behaviors and practices. Reinforce positive actions, link them to benefits they bring, and relate the benefitsto beliefs about why they are important.

• Keep the organization focused. In some cases, culture change is fueled by a loss.Hopefully that is not the case at your place of business. Find positive ways to keepthe focus on the daily work of building and growing an effective safety culture.

Employees may be required to par-ticipate in a certain number of training classes each year, but whathappens if they don’t? A veteranfirefighter in Ohio, who thought the department’s training classeswere not worthwhile and attendedonly a fraction of required classes,was terminated for gross neglect of duty.

What Happened“Christopher” worked as a firefighter/paramedic for the Canton Fire Department for 11 years beforebeing hired by the NimishillenTownship Fire Department, wherehe was employed in the same position for 12 years.

The Nimishillen Township depart-ment required its firefighters to attend at least 50 percent of alltrainings offered annually, butChristopher was not meeting that requirement.

In July 2009, the chief and assistantchief spoke to Christopher about hisdeficiency. Christopher admittedboth his knowledge of the require-ment to attend at least 50 percent oftraining sessions and his failure todo so.

He told the chief and assistant chiefthat he did not feel that he shouldhave to attend the sessions becausethey were not worthwhile in hismind.

Meanwhile, the chief consideredChristopher’s lack of training to be adangerous safety liability.

By the end of 2009, Christopher hadattended only 11 of the 47 trainingsessions offered that year, whichamounts to only 23.4 percent.

The Board of Trustees of NimishillenTownship held a disciplinary hearingon September 23, 2010, regardingChristopher’s failure to comply withcertain training classes, as stipulatedin the Nimishillen Township FireDepartment Handbook. The Boardconcluded that his conductamounted to gross neglect of duty,and it terminated his employment.

In reaching that decision, the Boardnoted that Christopher was frustratedwith the content of the trainingclasses and that he only attendedtrainings where he would receive acertificate for attending.

In addition, the Board acknowl-edged that, although he had receivedprior training from the Canton FireDepartment, the training require-ments and equipment used by theNimishillen Township and the cityof Canton were different.

Christopher appealed the Board’sdecision, but the trial court upheldthe decision.

He then appealed to the state courtof appeals, contending that the trialcourt erred in concluding that the

Board had followed the disciplinaryprocedure included in the employeehandbook and in finding thatChristopher’s conduct constitutedgross neglect of duty.

What the Court SaidThe appeals court also upheld thetrial court’s decision. It noted thatthe employee handbook provides a disciplinary process for severe violations. “Disciplinary actionswill be in direct relationship to the offense. All disciplinary actionswill be documented in the em-ployee’s permanent personnel file,”the handbook states.

The handbook then lists how viola-tions will be handled under the step process: first offense—verbalwarning; second offense—writtenand verbal warning—possible pro-bation; third offense—30- to 90-daysuspension; and fourth offense—dismissal.

However, the handbook also states,“Severe violations may require se-vere disciplinary actions and maybypass any of the above.”

The court concluded that statutoryprovisions and the wording in thehandbook gave the fire chief sufficient power to bypass the step-disciplinary process. As a result, the court upheld the trial court’sconclusion that the Board did not violate the disciplinary proceduresoutlined in the employee handbook.

dining services, a source of frequentcuts, burns, and other incidents.

The training would aim to reduce incidents by teaching employees to become more aware of their surroundings and remain “in themoment” rather than pulled away by distractions.

Drew de Paz believes applying theseprinciples to safety would giveworkers a way to feel better about

how they’re living and working. Shequoted a mindfulness expert whosays the real tragedy of life endingis not when one dies but is about allthose moments when one hasn’tbeen living.

Adds Drew de Paz, “If we live in the moment, we can have a healthierand better life.”

Many Paths to CultureA traditional safety and health program inspired by a concept like

100% Safe and a new approach totraining that emphasizes being present in the moment are just twoof many pathways to a superiorsafety culture.

Whether you’re following provenprinciples or investigating new ways of keeping your workers safe,you’re on the right track if you’reassessing hazards, involving work-ers, tracking progress, and makingconstant adjustments. [80, 164.20, 187]

6 © 2012 BLR®—Business & Legal Resources (#680)

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Was Failure to Attend Half of Training ClassesGrounds for Termination?

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Good housekeeping is a foundationof safety in every area of a work-place—especially in a warehouse.Here’s a brief overview of the dif-ferent housekeeping concerns in the warehouse.

Aisles, Walkways, Stairs• Keep aisles unobstructed. Cluttered aisles may block evacuation routes.

• Clean up floors that are slippery,wet, or icy floors that could cause falls.

• Report unstable or uneven walking surfaces for repair.

• Report broken lights or burned-out bulbs so aisles and stairwellsare well lighted.

Storage AreasThese areas should have sturdyshelving appropriate to the items tobe stored to prevent injuries fromfalling items or shelving collapse.

• Store common items at heightsthat do not require excess stretch-ing or bending by workers.

• Follow required special storageprocedures for hazardous materials.

• Ensure that all containers areclearly labeled with necessarywarnings and instructions.

ForkliftsForklifts must be operated only byauthorized and trained employees.

• Be aware of forklift traffic anddriving lanes when walking in thewarehouse.

• Make sure the forklift operatorsees you.

• A forklift steers from the rear, sothe back swings wide when mak-ing a turn, so give it plenty ofroom if you are walking near it.

• Be especially careful when theforklift is on a ramp or unevensurface; tipovers are the mostcommon cause of serious forkliftaccidents.

Manual Material-HandlingEquipmentEven simple warehouse equipmentsuch as hand trucks, dollies, andmanual pallet jacks can be haz-ardous if not used properly.

• Choose the right hand truck forthe job.

• Stack the load so that you can seeover it. Place the largest, heaviestitems on the bottom so that theload is stable.

• Secure the load. Strap it in placeso that it can’t shift position or falloff.

• Always push; don’t pull—keepthe load under control and in frontof you (unless going up a ramp).

LiftingEvery warehouse involves at leastsome manual moving and lifting. As

a result, the majority of warehouseinjuries involve back problems.

• Your legs, not your back, shoulddo the work when lifting.

• Ask for help if you need to movea heavy load.

Of course, each of these areas merits its own training sessions.Conduct separate sessions asneeded, especially if there is an incident in one of the areas.

© 2012 BLR®—Business & Legal Resources (#680) 7

Trainer’s Corner Why It Matters� Lack of proper segregation in

the storage of a wide range ofhazardous chemicals caused afire and subsequent explosionsthat destroyed a warehouse and required the evacuation ofnearby residents.

� A customer visiting a warehouseto collect stored items had bothlegs broken when he was run overby a forklift moving in reverse.

� A warehouse worker was killedafter falling 9 feet from a forkliftplatform. The worker was stand-ing on the loaded platform as itwas being raised to a warehouserack.

� An employee was crushed under a 4,000-pound crate that fellfrom a forklift. The worker was spotting the unsecured crate, which fell when the forklift passed over an unevendocking plate.

Similarly, the appeals court said the trial court did not err in findingthat Christopher’s failure to attend50 percent of the training courses,as required, amounted to gross neg-lect of duty.

Christopher had argued that therecord does not establish gross neg-lect of duty, that the decision to ter-minate him was far removed (by 8 months) from his failure to attend

training, and that the chief consid-ered him to be “a member in goodstanding” before termination.

Meanwhile, the chief had testifiedthat Christopher was not singled out for termination. In fact, the chief had met with all of the individuals who had not compliedwith the training requirements, and Christopher was the only fire-fighter who fell far short of the re-quirements who did not voluntarilyresign.

The appeals court concluded thatthere was credible evidence thatChristopher’s failure to attend atleast 50 percent of the training sessions amounted to gross neglectof duty.

Todd v. The Board of Trustees ofNimishillen Township (No.2011CA00057) (Court of Appeals,Stark County, Ohio, 5th AppellateDistrict, 11/21/11)

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Good Housekeeping Practices for the Warehouse

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8 © 2012 BLR®—Business & Legal Resources (#680)

Contractor SafetyQ. Is it a mandate to have sub-contractors follow every safetypolicy that our company uses, or can they deviate and our company be indemnified? If I require hard hats and glasses, and they don’t use them, should I force them?

A. There is no mandate fromOSHA about contractor/subcon-tractor policies, but the agency hasa long history of fining both the contractor and subcontractor for violations of rules broken by thesubcontractor.

Because OSHA’s policy for issuingcitations at multiemployer work-sites is complicated, it is best to set out a clear, written safety policythat subcontractors must follow that describes the responsibilitiesfor worker safety—and enforce it.

OSHA has developed a directive toguide OSHA enforcement staffconcerning multiemployer work-sites. The directive is worth yourtime reading. You can access it onthe BLR® safety site at http://safety.blr.com/reference.aspx?id=77864.

Here is an excerpt from the directive:

Multiemployer worksites. On multiemployer worksites (in all industry sectors), more than oneemployer may be citable for a haz-ardous condition that violates anOSHA standard. A two-step processmust be followed in determiningwhether more than one employer isto be cited.Step One. The first step is to deter-mine whether the employer is a creating, exposing, correcting, orcontrolling employer. The defini-tions in paragraphs (B)—(E) belowexplain and give examples of each.Remember that an employer mayhave multiple roles (see paragraphH). Once you determine the role of the employer, go to Step Two todetermine if a citation is appropriate.(Note: Only exposing employers can be cited for General DutyClause violations.)Step Two. If the employer falls into one of these categories, it hasobligations with respect to OSHArequirements. Step Two is to deter-mine if the employer’s actions weresufficient to meet those obligations.The extent of the actions required

of employers varies based on whichcategory applies. Note that the extent of the measures that a con-trolling employer must take to satisfy its duty to exercise reason-able care to prevent and detect violations is less than what is re-quired of an employer with respectto protecting its own employees. [47]

Medication in The WorkplaceQ.What does OSHA have to sayabout medication in the workplace?

A. OSHA doesn’t say anythingspecific about medication unless it is prescribed for a workplace injury. In that case, if medication is a prescription or prescriptionstrength, the injury would berecordable on the OSHA 300 log.

However, employers need to beaware if employees are taking prescription or over-the-countermedication that may impair theirability to drive or operate machin-ery. Employers are required to provide a safe and healthful work-place under OSHA’s General Duty Clause. [80, 90]

Ask the Experts

Stripes, is to determine if there is a link between DMAA, an amphetamine-like substance, anddangerous health effects.

The publication quoted this armystatement, “We are evaluating ad-verse health event cases possiblylinked to DMAA products through a series of provider and patient interviews and are applying estab-lished algorithms commonly used to assess side effects associatedwith drugs.”

DMAA is sold as a natural supple-ment and reportedly has not undergone government testing. Ithas been banned by Major League

Baseball and the World Anti-DopingAgency. Makers of the substancesay it is a natural extract of geraniumflowers.

The military has logged cases ofkidney and liver failure, seizures,and other conditions possibly linkedto DMAA. [8.50, 80, 202]

Labor Dept. SurveyWould Assess Employee ‘Voice’The U.S. Department of Labor(DOL) has proposed conducting asurvey that would gather the viewsof workers about occupationalsafety and wage regulations. Thegoal is to assess workers’ “voice.”

DOL describes “voice” as the degreeto which regulated employees havethe ability to access information onworkplace rights, understand thoserights, and exercise them withoutfear of reprisal.

The department is currently review-ing comments on its proposal. Itplans to conduct a pilot study of800 employees, followed by alarger assessment of 4,000 employ-ees in general employment.

According to the Federal Registernotice, the proposed study will also examine the relationship be-tween voice and outcomes such as perceived workplace safety, fair compensation, and employernoncompliance. [164.2\

(continued from page 2)

MICHIGANMSU Research Links DeathsTo Paint-Stripping ChemicalThe deaths of at least 13 workerswho were refinishing bathtubs havebeen linked to a chemical used inproducts to strip surfaces of paintand other finishes.

An investigation launched by re-searchers at Michigan State University (MSU) revealed that the 13 deaths, including three inMichigan, involved the use of paint-stripping products containing

methylene chloride. This is a highlyvolatile, colorless, and toxic chemi-cal widely used as a degreaser andpaint stripper.

According to MSU, the chemical is available in many over-the-counter products sold at home improvement stores, as well as inindustrial settings.

“To use products containing meth-ylene chloride safely, work areasmust be well-ventilated, and when levels of methylene chlorideexceed recommended exposure limits, workers must use protective

equipment,” noted Kenneth Rosen-man, chief of MSU’s Division ofOccupational and EnvironmentalMedicine.

He added that the hazards of usingthe chemical in bathtub refinishingneed to be communicated to em-ployers, workers, and the generalpublic. “Safer methods using alter-native products should be recom-mended.” MSU recommended thatmanufacturers note on productscontaining methylene chloride thatthey should not be used in applica-tions such as bathtub refinishing. [23, 90,119, 146.50]

They say that cockroaches couldsurvive a nuclear holocaust, so is it any surprise that they sometimesdefy our best efforts to keep themout of our workplaces?

Fruit flies, fungus gnats, ants, spiders, and other pests—even bedbugs—can periodically findtheir way in as well. However, thesituation goes from bad to worsewhen employees take matters intotheir own hands, bringing in cans of insect-killing chemicals.

Pesticides are toxic and should notbe brought into the workplace orused without the employer’s knowledge and approval. Help employees work with you to pre-vent and control pest invasions with these nontoxic strategies,adapted from a California Depart-ment of Pesticide Regulation factsheet. (Find the full fact sheet athttp://bit.ly/y0oKI2.)

Prevent Pests from InvadingBuilding managers are responsiblefor filling holes and applying pesticides in the building, but all

employees can help make the workplace less attractive to pests if they will:

• Be fruitless.Many pests are at-tracted to fruit. Workers shouldnot leave fruit in or on their desks overnight; rather, theyshould take it home or store it in the refrigerator.

• Put a lid on it. Nonperishable or dry snacks should be kept in sealed plastic containers, not in plastic bags.

• Do the dishes. Dishes and utensils soiled by food attractpests. Dishes should be washedafter each lunch break or shift.

• Clear the decks. Dirty surfacesalso attract pests. Counters should be wiped down at the end of lunch or a shift.

• Bag it. Food wastes should be disposed of in compost or garbage cans that have plastic liners. These cans should be emptied each night.

• Pick up. Clutter provides hidingand nesting places for pests, including rodents. Employeesshould keep their workplace

clutter-free and store items off the floor.

• Learn good plant care.Work-place plants are beneficial unless they become infested with gnats. To prevent this, do not overwater plants. Plants infested with gnats should be removed from the workplace.

Dealing with Pest ProblemsRather than treating pest problemson their own, employees should let their supervisor or building man-ager know about pest problems orsanitation issues as soon as they arediscovered.

• Tell.Workers should report spills,plumbing leaks, or areas that needcleaning.

• Take note.When reporting a pest,workers should make a note of evidence they’ve seen, includingdroppings, damage by the pest, orthe pest itself, as well as whereand when they made the observa-tion. The more information em-ployees can provide, the moreeffectively the problem can bedealt with.

© 2012 BLR®—Business & Legal Resources (#680) 9

Featured ResourceAre Pests Getting Pesky? Protect Your Workplace

From the States

(more States on page 10)

NEW JERSEYMonthly Stand-Downs HelpProtect Motor Pool StaffThe motor pool at Joint BaseMcGuire-Dix-Lakehurst has oper-ated for more than 1,100 days without a lost-time accident. The322nd Regiment located there is responsible for servicing and repairing all tactical vehicles usedby mobilizing units on the base.

According to a base press release,safety is especially important in amotor pool where soldiers work on heavy vehicles with potentiallydangerous machinery.

The centerpiece of the motor pool’sworker protection program is a regular safety stand-down. For a half day once a month, all vehiclemaintenance comes to a halt. Soldiers gather to discuss topics like the army’s Composite RiskManagement (CRM) system, driving distractions, and at-homesafety practices. The material is presented in an open forum to en-courage discussion.

“It is too easy to assume a youngsoldier knows about CRM just be-cause I know about it,” said StaffSgt. Richard Yusko, who leads bat-talion safety. “We have people herewith a lot of different experiencesfrom a lot of different units, so wehave to get everyone in line if we’regoing to be successful.”

Outside agencies are invited to par-ticipate in the stand-downs andshare best civilian practices. The firedepartment, police, and equipmentmanufacturers have participated.“We really try to keep the safetystand-downs interesting,” saidYusko. “It’s more effective than repeating the same information thesame way over and over.”

Safety stand-downs are one bestpractice among many in use at thebase. A strengthened hazard com-munication program, daily visual inspections, and an improved

ventilation system have also contributed to a safe working environment. [114, 127, 164.20, 177]

CALIFORNIAFood Processing Plant to PayHeavily for Toxic ReleasesSouth San Francisco food processorColumbus Manufacturing, Inc., a wholly owned subsidiary ofColumbus Foods, LLC, has agreedto pay a penalty and make signifi-cant upgrades to settle Clean Air Act violations.

The announcement was made by thefederal Environmental ProtectionAgency and the U.S. Department of Justice.

The case stems from two releases of anhydrous ammonia that occurredin 2009 at the Columbus Foodsmanufacturing plant. As part of the agreement, Columbus will pay a penalty of nearly $700,000 andwill spend about $6 million convert-ing its refrigeration system to a safer technology. The business also agreed to improve its alarm and ammonia release notificationprocedures.

The first accidental release sent 217 pounds of poisonous gases intothe atmosphere.

Six months later, another cloud wasreleased. It resulted in the evacua-tion of all employees and severalneighboring businesses. A numberof people working at a nearby business campus sought medical attention.

EPA Regional Administrator JaredBlumenfeld said, “Our goal is tosafeguard neighbors and workers by requiring critical improvementsto the company’s plant to preventthese industrial accidents from happening again.” [6, 19, 23,47, 196]

New Health Center to BenefitStaff of Organic Food MakerThe natural convenience food com-pany Amy’s Kitchen has openedAmy’s Family Health Center at itsSanta Rosa production facility.

The site will provide convenient,high-quality health services.

“We’re a family here, and we wantto eliminate any barriers that mayprevent our employees from takinggood care of themselves and theirfamilies,” noted Amy’s HR DirectorCindy Gillespie. Since the facilityopened in early February, employ-ees have shown great interest.

The center offers same-day appoint-ments, bilingual services with Spanish-speaking personnel, and a$5 copay. Services include:

• Preventive care through annualexams and immunizations

• Treatment of basic illnesses andinjuries

• Management of chronic conditionslike diabetes and asthma

• Health and wellness coaching• Coordination with specialtyproviders

The center is operated by QuadMed,a national provider of on-site primarycare clinics. While use is optional foremployees, Amy’s hopes that provid-ing convenient care will make it easier to stay healthy. [19, 80, 90, 202]

MARYLANDPepsi Workers Win Option To Be Treated at HopkinsPepsiCo is offering employees theopportunity to travel to Johns Hopkins Medicine in Baltimore forcardiac and complex joint replace-ment surgeries. According to thesoft drink giant, the travel surgerybenefit will be extended to domesticemployees and their dependents—some 250,000 people.

PepsiCo, which operates its ownself-funded medical plans, willwaive deductibles and coinsurancefor those who choose to have theirsurgery at Johns Hopkins, a world-renowned medical center. The company will also cover travel andlodging expenses for the patient anda companion. The offer is based onan all-inclusive rate for hospital andphysician charges.

10 © 2012 BLR®—Business & Legal Resources (#680)

(continued from page 9)

© 2012 BLR®—Business & Legal Resources (#680) 11

Said Patricia M.C. Brown, presidentof Johns Hopkins Healthcare, LLC,“We’re excited about the opportu-nity to work with an innovativecompany like PepsiCo that is com-mitted to ensuring cost-effective,higher-quality care as part of its employee health benefits.” She said the offer of top-quality careshould mean fewer complications,quicker return to work, and pre-dictability of cost. [80, 115]

GEORGIA/ILLINOISWhistleblower Vindicated In Job Termination CaseOSHA has ordered Interline Logistics Group, LLC, based inKennesaw, Georgia, to immediatelyreinstate a truck driver who was terminated after reporting safetyconcerns about the brakes on his truck.

According to OSHA, the driver re-fused to violate U.S. Department of Transportation (DOT) rules forallowable driving and rest hours.

Logistics Group has been ordered topay the driver more than $190,000in back wages, damages, and fees,and to refrain from retaliatingagainst the employee for exercisingguaranteed rights.

The driver, who was working in Illinois, filed a timely whistleblowercomplaint with OSHA. He claimedto have been fired after notifying his employer about the deficientbrakes.

OSHA found the company had di-rected the driver to a repair shop toservice the brakes. After the servicecall, the driver was told to proceedto his dispatch location to pick up a return load.

The driver declined, stating he wasover DOT-allowed work hours; he was terminated the next day.Among reasons given was failing tofollow dispatch instructions.

“This case sends a clear messagethat employers are simply not al-lowed to retaliate against workers

for reporting work-related safetyconcerns or against drivers who refuse to violate DOT regulationsthat determine how many hoursthey are allowed to work and howmuch rest they receive,” said OSHAChief Dr. David Michaels. [39, 66, 85, 89, 138.50]

NEW HAMPSHIREState Supreme Court RulesFor Volunteer FirefighterWho SuedThe New Hampshire SupremeCourt has ruled in favor of volun-teer firefighter Jason Antosz.

The Epping man sued a homeownerafter falling on the home’s drivewayduring a fire call. Antosz is also amember of the New HampshireHouse of Representatives.

At issue is what’s known as the“Fireman’s Rule,” which preventsfirefighters from suing during active service. But the high courtconcluded that the rule does notprevent legal action filed “for othernegligent conduct.”

The Supreme Court overturned alower court ruling in favor of thehomeowner.

The recent ruling was criticized by David Lang, president of theProfessional Firefighters of NewHampshire. He argued that fire-fighters are already covered forsuch injuries under workers’ compensation laws.

The ruling could have a “chillingeffect” on a citizen’s decision to call emergency services, Lang added. [126, 207]

MINNESOTAChange in Coverage CouldSave State Millions Per YearThe state of Minnesota will nolonger provide Blue Cross BlueShield (BCBS) health insurance tostate employees and has insteadchosen UnitedHealthcare.

According to the website 1Health-Insurance.Org, BCBS apparently

“came up short” when negotiatingprices against United.

A state official commented, “United is going to save us a substantial amount of money yearafter year. It’s about 5 percent, $8 million a year on average.”

Reportedly, the state had beenpleased with BCBS service butmade the switch based on potentialcost savings.

It is believed that many state em-ployees will be able to keep theircurrent insurance providers becauseboth BCBS and UnitedHealthcareaccept them. [121

What You Can DoAlthough this case dealt with Ohiostate law, it has implications for employers everywhere.

First, employees need to understandtheir training obligations, for exam-ple, which courses are mandatoryand how many courses they are expected to complete within a given year. Make sure this is clearlyoutlined to employees.

Second, it is important to hold em-ployees accountable for attendingtraining. Otherwise, they might not feel obligated to attend futuretrainings, and their conduct—andthe company’s lack of response toit—might set the stage for other employees to selectively attendtraining sessions.

Finally, this case demonstrates theimportance of making sure learnersunderstand how training pertains totheir jobs.

While not attending training classesbecause he did not find them worthwhile does not excuseChristopher’s obligation, it doesserve as a good reminder to trainersthat their jobs will be easier—andlearners will be more engaged intraining—if learners understandwhat’s in it for them.

(continued from page 7)

2004 have contributed to unprecedented improvementin highway safety.” He said the costs of the new ruleoutweigh the benefits, noting that speed is a greaterhighway concern than fatigue. [39, 41, 85, 164]

Workers Concerned About Shop Towel HazardsKimberly-Clark Professional, which manufactures disposable industrial towels, says four in five manufac-turing workers questioned agree that cloth shop towelsshould be banned if they are not completely free ofhazardous materials after laundering.

The results of a survey show that once the potentialcontamination risks of laundered towels are known,workers agree on the need to address the issue. However, says Kimberly-Clark, knowledge is limited,with less than half of workers aware of exposure risks.

A 2011 study conducted by the environmental consult-ing firm Gradient and sponsored by Kimberly-ClarkProfessional showed that toxic heavy metal residueswere found on 100 percent of laundered shop towelstested. The retained metals could result in workplaceexposures exceeding toxicity exposure guidelines, according to the company. [77, 87.50]

Cal/OSHA Enforcement Holds Employers Accountable Cal/OSHA has issued 28 citations with penalties totaling $540,890 following an investigation into an August 9 explosion in Sylmar that injured threepeople, two of them critically.

Investigators found violations at three businesses:Rainbow of Hope AKA Rainbow of Hope Foundation;Strategic Sciences, Inc.; and Realm Catalyst.

The explosion occurred when a pressure vessel con-taining compressed gas exploded as two workers were transferring hydrogen and oxygen gas from onecylinder to another. The explosion took the arm and leg of one worker and seriously injured the other. Athird suffered minor injuries.

The incident occurred on the day a hearing was underway for earlier citations issued by Cal/OSHA againstRealm Catalyst. A 2010 explosion killed a worker inSimi Valley.

“Our investigation documented a troubling disregardfor safety as the employer continued to manufactureand store gases that are known to be highly explosivewithout the proper safety procedures in place,” saidCal/OSHA Chief Ellen Widess. “Employers cannotplace their employees at risk by skirting their work-place safety responsibilities.” [19, 25, 47, 90]

12 © 2012 BLR®—Business & Legal Resources (#680)

(News continued from page 1)

Richard W. Bunch, Ph.D.Industrial Safety and Rehabilitation Institute

Houma, LA

bunchisr@aol.com504-733-2111

Chip Darius, OHST, CET, EMTSafety Priority Consultants, LLC

Cromwell, CT

cdarius@safetypriority.com860-978-9899

Mark B. Haskins, CSPPrincipal Consultant

Practical Safety Solutions, LLCOld Lyme, CT

mbhaskins@pss-llc.com860-434-5092

William Pfister, PresidentSafety Training and Consulting, Inc.

Jasper, IN

stac@fullnet.com812-634-1188

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