The Safety Director's Cut

Missouri Closes Workers Compensation Loophole: Protecting Co-Workers from Lawsuits

Greg Lemke — Fri, 18 May 2012 15:37:44 +0000

The Missouri Senate passed legislation recently that would effectively close a major loophole in Missouri Workers Compensation laws. The following the Missouri chamber of Commerce’s press release detailing the legislation.

Missouri Chamber pleased with passage of workers’ compensation reform that protects Missouri workers

Yesterday, the Missouri Senate passed legislation, House Bill 1540, on a unanimous vote and was adopted by the House with a vote of 122-29. The bill was sponsored by Rep. Tim Jones specifies that an employee subject to workers’ compensation provisions must be released from all liability for personal injury or death to a co-employee due to an accident or occupational disease.

Following reforms to the workers’ compensation system in 2005, the courts began interpreting the law in such a way that co-workers were no longer protected as the exclusive remedy for workplace accidents. Already, millions of dollars in lawsuits and settlements have been paid out as more and more trial attorneys find ways to leverage this loophole.

This comes at a crucial time as the Missouri Chamber has heard reports of trial attorneys using the loophole to go after the personal assets of co-workers of employees who were killed at a Joplin business during last year’s tornado.

“Every possession that these individuals own that wasn’t taken by the tornado is now at risk due to a flaw in the law that trial attorneys are using to get rich,” said Daniel P. Mehan, Missouri Chamber president and CEO. “We are getting pleas from businesses that are being bankrupted by a rash of co-employee lawsuits, but reports of this flaw and the tornado being used to line the pockets of lawyers on the backs of innocent workers reaches an all-new low,” Mehan said.

“Workers’ compensation served as the exclusive remedy for co-employees for decades until the changes to the law in 2005,” Rich AuBuchon, general counsel for the Missouri Chamber of Commerce and Industry, said. “This loophole puts Missouri workers in the crosshairs of trial attorneys seeking big payouts for a cause of action that was not intended to exist. No employee should be forced to worry about losing their home to a lawsuit based on an unintentional workplace accident. The passage of this legislation will protect employees and employers throughout Missouri.”

The passage of this legislation was extremely difficult. Despite this success other critical issues impacting our workers’ compensation system remain including a loophole that allows employees to sue in court for compensation of occupational disease in addition to receiving workers compensation benefits. Also, Missouri’s insolvent Second Injury Fund remains unresolved. The Missouri Chamber of Commerce and Industry will continue to work on these issues but with only three days left in the 2012 Legislative Session the issues remaining may not be resolved this year.

OSHA Has Specific Training Requirements For Workers

Greg Lemke — Mon, 14 May 2012 16:17:01 +0000

Working with many different types of clients is a lot of fun, but it also keeps you on your toes. Especially regarding training requirements. One of the most frequently asked questions I get involves OSHA regulations on how often you must have safety meetings.

Currently OSHA has no regulation on how often you must have safety meetings. However, there are regulations that require training on a scheduled basis such as Bloodborne Pathogens (29 CFR 1910.1030) training, which is required annually.

Other general industry standards that require annual training include:

Asbestos—29 CFR 1910.1001
Exposure and Medical Records—29 CFR 1910.1020
Fire Brigades—29 CFR 1910.156 (quarterly training required for interior structural firefighters
Fire Extinguishers—29 CFR 1910.157
Fixed Fire Extinguisher Systems—29 CFR 1910.160
Grain Handling—29 CFR 1910.272
HAZWOPER—29 CFR 1910.120
Machine Guarding—29 CFR 1910.217 and 218
Noise—29 CFR 1910.95
Respiratory Protection—29 CFR 1910.134
Toxic Substances—29 CFR 1910.1003, 1017,1018, 1025-1029, 1043, 1045-1048, 1050

Then there are two standards that require training every 3 years: Process Safety Management (29 CFR 1910.119) and Powered Industrial Trucks (29 CFR 1910.178). For more information on OSHA required training visit the OSHA website, or contact me directly at learningsolutions@occutec.com.

Talk about Safety: Save a Life!

Greg Lemke — Thu, 10 May 2012 14:19:45 +0000

“Toolbox Talks”, “Toolbox Topics” , “Safety Chats” , “Tailgate Meetings” or whatever your organization calls them is a brief safety talk or meeting about a specific subject at the beginning of the shift. These talks can be done in a variety of ways but are typically a brief (5-10 minute) interactive discussion meeting on something safety related. Toolbox Topics are used to cover a variety of short safety training subjects and to remind employees each day before they go to work, the importance of being safe. They can also help foster and grow a culture of safety within your company.

However sometimes the same safety meetings that occur time after time lose some of the spark as an effective training tool. We’ve all been to safety meetings that missed the mark—topics were not pertinent, sessions ran too long, disorganization ruled. We have all experienced times when the safety training was forgotten as soon as the meeting was over.

It’s too important to just give up though. Employee’s lives and fortune depend upon their knowledge and attitude about job site safety. One seemingly silly accident can quickly ruin a company financially as well, and for the remaining employees it can certainly alter their quality of life. It is in every worker’s interest to protect their savings and earning potential as well as their life and health.

Tips for Effective Safety Meetings

Carefully time the length of meetings. If you hold meetings once a month, keep the length at 30-45 minutes; once a week, keep it 30 minutes or less with 20 minutes as the ideal length. The longest meetings should run no more than an hour.
For construction work, have short, informal tailgate safety meetings of 5, 10, or 15 minutes before work once a week, with a longer talk at least once a month or at the start of each phase of the construction project.
Schedule topics over a long period—a year is most common. The schedule provides reasonable deadlines for the trainer and helps others plan their working days.
Select meeting topics on the basis of 1) a review of the most recent types of accidents and near-accidents, 2) related corporate safety goals, 3) any particular subjects that need to be covered from a legal or insurance standpoint, and 4) your basic list of safety topics to be reviewed.
Have the senior management person at the location open the meeting and sit in—it’s a sign of commitment.

Without constant reminders about safety, we tend to forget, get sloppy, take risks, and have accidents. Safety meetings are a great refresher and can keep you abreast of changes in the regulations, safety procedures, equipment, personal protective equipment (PPE) and job assignments, and responsibilities. Refresher training is also sometimes required by OSHA and having a pre-planned weekly meeting is a convenient way to go over required training.

The characteristics of a Safety Culture

Greg Lemke — Fri, 04 May 2012 18:43:50 +0000

What does an organizational culture that gives safety a priority look like? There are several identified characteristics that go to make up a safety culture. Included in these are:

An informed culture*: one in which those who manage and operate the system have current knowledge about the human, technical, organisational and environmental factors that determine the safety of the system as a whole,
A reporting culture*: a culture in which people are willing to report errors and near misses,
A just culture*: a culture of ‘no blame’ where an atmosphere of trust is present and people are encouraged or even rewarded for providing essential safety-related information- but where there is also a clear line between acceptable and unacceptable behavior,
A flexible culture*: which can take different forms but is characterized as shifting from the conventional hierarchical mode to a flatter professional structure.
A learning culture*: the willingness and the competence to draw the right conclusions from its safety information system, and the will to implement major reforms when the need is indicated.

*Reason, J.T. (1997) Managing the Risks of Organisational Accidents

Taken together these five characteristics help form a culture of trust and of informed collective. Of course trust is needed, especially in the face of assaults upon the beliefs that people are trying their best, such as accidents and near-miss incidents which all too easily look like failures of individuals. Informed people know what is really happening, lessening the chance of mistakes. These and other critical elements help us to identify what beliefs are associated with a safety culture and will ultimately help reduce the frequency of accidents/incidents.

GHS is finally here…almost!

Greg Lemke — Mon, 30 Apr 2012 14:24:13 +0000

OSHA’s recently published the final rule to adopt the Global Harmonization System (GHS), which according to them will not change the framework and scope of the current Hazard Communication Standard (HCS) but will help ensure improved consistency in the classification and labeling of all workplace chemicals. GHS provides a single set of harmonized criteria for classifying chemicals according to their health and physical hazards and specifies hazard communication elements for labeling and safety data sheets. Under GHS, labels would include signal words, pictograms, and hazard and precautionary statements and safety data sheets would have standardized format. This system was agreed on at an international level by governments, industry, and labor, and adopted by the UN in 2002 with a goal of 2008 for implementation.

According to OSHA this change will affect over 40 million workers in about 5 million workplaces. The change to GHS was a long time in coming and necessary as the global chemical business is more than a $1.7 trillion per year enterprise. In the U.S., chemicals are more than a $450 billion business and exports are greater than $80 billion per year. Existing laws and regulations are currently different enough to require multiple labels for the same product both within the U.S. and in international trade and requiring multiple safety data sheets for the same product in international trade. Several U.S. regulatory agencies and various countries also have different requirements for hazard definitions as well as for information to be included on labels or material safety data sheets. GHS effectively establishes agreed hazard classification and communication provisions with explanatory information on how to apply the system worldwide.

It is important to remember that GHS itself is not a regulation or a standard. The GHS Document (referred to as “The Purple Book”) is simply a mechanism to meet the basic requirements of any hazard communication system, which is to decide if the chemical product produced and/or supplied is hazardous and to prepare a label and/or Safety Data Sheet as appropriate. OSHA’s HCS will incorporate the needed elements of GHS to make international trade and commerce easier.

Of course with change comes the need for training. Employers will need to have trained their employees regarding the new label elements and safety data sheets format by December 1, 2013 with full implementation of GHS taking place December 1, 2015.

OSHA has published a side-by-side comparison of the current HCS with the new GHS elements incorporated which can be found here. If you need more information or training contact me, I’d be happy to help you find the needed resources.

4-Year GHS Compliance Transition Period

May 25, 2012 to November 30, 2013 All employers that use, handle, store chemicals	Train employees how to read and interpret chemical labels and (material) safety data sheets in compliance with either: The pre-GHS HazCom standard for labels and MSDSs; or The revised HazCom standard with GHS for new-style labels and SDSs; or Both old and new requirements at the same time
December 1, 2013 All employers that use, handle, store chemicals	Train employees about the new GHS-compliant chemical labels and SDSs.
June 1, 2015 Chemical manufacturers, importers, distributors	Comply with all the requirements of the GHS rule, including classify chemical hazards and prepare new labels and SDSs. Distributors have until December 1, 2015 to comply with the shipping requirements for GHS-compliant labels.
December 1, 2015 Chemical manufacturers, importers, distributors	All shipments of chemical containers must include the new GHS-compliant label (signal word, pictogram, hazard statement, and precautionary statement).
June 1, 2016 All employers that use, handle, store chemicals	Update alternative workplace labeling and hazard communication program as necessary, and provide additional employee training for newly identified physical or health hazards.

Get By With A Little Help From A Friend: Safety Professionals & Trainers

Greg Lemke — Mon, 09 Apr 2012 18:54:18 +0000

Recently I had the great pleaure of getting to know more and more experienced safety professionals and trainers using LinkedIn Groups. Some of the more interesting subjects within our industry are being discussed right now by a wide range of professionals whose insight and knowledge has helped me immensely in my career. I have listed below a couple of the more interesting blog posts that I have discovered using LinkedIn.

The Most Overlooked Paragraph in the OSHA Standards

Several months ago I was reading posts made by members in one of the many social networking groups I belong to that are dedicated to occupational health and safety matters. The original discussion question inquired about the regulations that should be applied to workers who were not wearing fall protection harnesses while spreading metal decking…(read more).

Don’t Overlook OSHA’s “Unscheduled” Refresher Training Requirements

When I conduct mock-OSHA inspections for companies, we spend a lot of time focusing on their employee safety training efforts. What we typically find is that most employers provide a new employee safety orientation to get the newbies up to speed on the mandatory OSHA topics…(read more).

Beware – Where Behavior Based Safety Programs and OSHA Standards Collide

Occasionally a company that has implemented an OSHA compliance program asks me for recommendations to help them “go to the next level” and “exceed OSHA compliance”. Often times I recommend they look into implementing a behavior based safety (BBS) program to compliment what they have in place. Many of you in the safety profession already know what a behavior based safety program is…(read more)

Employee Training Leads to Increased Productivity

Greg Lemke — Wed, 28 Mar 2012 18:20:15 +0000

According to ASTD research, companies that invest in employee learning have higher productivity, revenue growth, and profit growth than companies that do not. Employee training is a fundamental determinant of customer satisfaction, sales per employee, and market capitalization within an organization. Employee satisfaction with opportunities for learning and development is one of the most important predictors of whether an employee will stay with his or her current employer and the opportunity for professional development and training is one of the top three things people consider when deciding where they want to work.

Training should be viewed as a business value for your organization. There are measurable and hidden qualities that determine the health and well-being of an organization, drive decision-making for all work activities, and attract investors. A well trained workforce is definitely a quality that your organization needs to succeed.

Five ways you can increase the payback of your training dollars

Make training on ongoing process, and reassess training needs frequently to make sure you’re meeting today’s needs, not yesterday’s.
Encourage employees to talk about their training needs and request additional training.
Provide employees with opportunities to use newly learned skills on the job.
Make sure your training is comprehensive, interesting, and interactive, and gives employees the chance to practice new skills in a safe setting.
Send employees back to work with learning aids such as checklists, step-by-step instructions, and safety reminders that help them safely and effectively transfer newly learned skills to their job.

OSHA Changes Hazard Communication Standard to Match GHS

Greg Lemke — Wed, 21 Mar 2012 21:52:18 +0000

(from OSHA website)

New changes to the Occupational Safety and Health Administration’s (OSHA) Hazard Communication Standard are bringing the United States into alignment with the Globally Harmonized System of Classification and Labeling of Chemicals (GHS).

Major changes to the Hazard Communication Standard:

Hazard classification: Chemical manufacturers and importers are required to determine the hazards of the chemicals they produce or import. Hazard classification under the new, updated standard provides specific criteria to address health and physical hazards as well as classification of chemical mixtures.
Labels: Chemical manufacturers and importers must provide a label that includes a signal word, pictogram, hazard statement, and precautionary statement for each hazard class and category.
Safety Data Sheets: The new format requires 16 specific sections, ensuring consistency in presentation of important protection information.
Information and training: To facilitate understanding of the new system, the new standard requires that workers be trained by December 1, 2013 on the new label elements and safety data sheet format, in addition to the current training requirements.

Changes from the Proposed to the Final Rule: OSHA reviewed the record and revised the Final Rule in response to the comments submitted. Major changes include:

Maintaining the disclosure of exposure limits (Threshold Limit Values [TLVs]) established by the American Conference of Governmental Industrial
Hygienists (ACGIH) and carcinogen status from nationally and internationally recognized lists of carcinogens on the safety data sheets;
Clarification that the borders of pictograms must be red on the label;
Flexibility regarding the required precautionary and hazard statements to allow label preparers to consolidate and/or eliminate inappropriate or redundant statements; and
Longer deadlines for full implementation of the standard (see the chart below):

What you need to do and when:

Chemical users: Continue to update safety data sheets when new ones become available, provide training on the new label elements and update hazard communication programs if new hazards are identified.
Chemical Producers: Review hazard information for all chemicals produced or imported, classify chemicals according to the new classification criteria, and update labels and safety data sheets.

Effective Completion Date	Requirement(s)	Who
December 1, 2013	Train employees on the new label elements and SDS format.	Employers
June 1, 2015*December 1, 2015	Comply with all modified provisions of this final rule, except:Distributors may ship products labeled by manufacturers under the old system until December 1, 2015.	Chemical manufacturers, importers, distributors and employers
June 1, 2016	Update alternative workplace labeling and hazard communication program as necessary, and provide additional employee training for newly identified physical or health hazards.	Employers
Transition Period	Comply with either 29 CFR 1910.1200 (this final standard), or the current standard, or both.	All chemical manufacturers, importers, distributors and employers

* This date coincides with the European Union implementation date for classification of mixtures.

During the transition period to the effective completion dates noted in the standard, chemical manufacturers, importers, distributors and employers may comply with either 29 CFR 1910.1200 (the final standard), the current standard or both.

The final rule revising the standard is available at http://s.dol.gov/P1*.

Career Success Means Being Fully Engaged!

Greg Lemke — Tue, 20 Mar 2012 19:31:19 +0000

I have spent a lot of time and energy developing this blog. My aim is now as it has always been, to deliver a voice of encouragement and to be resource for folks looking to help keep themselves or others safe in the workplace. I have often utilized humor or tried to highlight some slightly off-center topics to engage my readers. But just the other day I was at lunch with a friend and we were talking about our careers, family, NCAA tournament…the usual. I guess at some moment I must have seemed down, because my friend asked me if I was happy? I instinctively said “sure”. He then asked me, “Why do you do it?” ”Why do you invest so much energy into your work….I mean what is your motivation? What are you passionate about?”

I thought for sure my friend was having a mid-life crisis or worse he thought I might be having a crisis. I left that lunch not really answering the question, at least not to myself. Oh, I replied the usual answers we all give, family and relationships, etc. But later after more reflection I came to the unexpected conclusion that it wasn’t just my family and personal relationships that drive me, but that I absolutely love what I do and I hold a strong conviction that environmental, health and safety is one of the most important, challenging, and respectable professions available. I started to write down some of the challenges that I haven’t been able to fully solve or overcome within EHS. Just that simple act of writing them down in front of me: there they were staring at me still fighting with me. Well that got my competitive juices flowing and I immediately wanted more than ever to meet these challenges and solve them once and for all.

As a EHS professional, or any professional, if you want to succeed in something you are not fully engaged in you are doomed to fail. I realized that my friend must have sensed that I haven’t been as fully engaged as I usually am and he decided to challenge me on it. So in turn I am challenging you! What are you passionate about? If you want to be happy you need to make sure you are getting something from your career choice beyond the paycheck. Whether its personal growth, working to a common purpose, or being part of a larger process you need to take time to celebrate the successes you have and repeat them when you can. Being engaged in your work means having fun and being enthusiastic about it. It is not acceptable to simply be satisfied with your job if you really want to succeed and be happy.

Whenever possible, do something that really charges you up. If having face-to-face time with the front line employees leave you with a feeling of accomplishment, make time in your schedule to do more of that. If training employees on hazard awareness helps you feel like you are making a difference, then try to do more of that. Don’t mistake this with only doing the things that are easy or fun, but definitely make time for them.

Quick Tips for Happy Engaged People

Remember the most important skill you will ever have or learn will come from a true desire to help others.
Find intrinsic enjoyment in your work; if you can’t, maybe you need a change.
Invest the time and resources to stay current in your industry.
Your relationships with management and labor have the biggest impact on your success. Nurture those relationships!
Top performance requires time to rest. Don’t beat yourself up for downtime. Rest and relaxation helps recharge your batteries.
Show genuine gratitude to your support team. This includes anyone who has a hand in your success.

Easy Steps for a Successful Accident Investigation

Greg Lemke — Mon, 05 Mar 2012 21:03:12 +0000

Some companies use the term “Circle of Prevention” when following the Plan, Do, Check, Act model for their safety and heath programs. As safety is really a continuing process of improvement, the OSHA standards should only be the beginning. They may help identify many of the general hazards of general business and construction, but you and your employees should be working together to identify on-the-job hazards unique to your industry and your work areas, using formal and informal safety audits and hazard analysis.

Whether through reading OSHA standards, consulting other guidelines or making your own observations, the circumstances of the hazards in your organization must be analyzed, the problem diagnosed, a plan of action developed, and then effective corrective action taken to minimize the risks.

But for whatever reason, somehow, even with your excellent safety and health program in place, an accident happens. Now what? After all the initial work is done including securing the scene and caring for the employee, you need to conduct a thorough accident investigation in order to help prevent similar accidents from happening in the future.

How your investigation is conducted will determine in large part how useful it will be.

When to start an Accident Investigation

You must act quickly as memories get fuzzy and initial perceptions may change, other employees start talking and with that the ‘water cooler’ effect takes over. Perceptions and eye witness accounts start being influenced by the storytelling. However, even though you want to get started right away do not get locked into a deadline for completing the investigation. If you are too rushed you may reach the wrong conclusions about the root causes.

Who should conduct the Investigation?

Most minor incidents and accidents can be investigated by the supervisor who is often the person most familiar with the operation. The supervisor is also in position to implement remedial measures as necessary. More serious and complicated incidents and accidents require more expertise. A team approach that includes the supervisor, safety professional or risk manager, management representative, perhaps a safety committee member and even a human resources representative will allow for a wide range of issues to be addressed. In addition, your insurance company will certainly be involved with any serious accident.

The purpose of the Investigation is Prevention not Blame.

It is crucial to the success an accident investigation to make sure you are getting full cooperation from witnesses or those involved in the accident. Remember, the people you are interviewing may be afraid that you will blame them and react defensively or even embellish the facts if they feel threatened. It is important to make sure they understand that you are simply trying to find the factors that led to the accident so future accidents can be avoided.

Review the facts.

Description of the accident
Witness Discrepancies
Condition of any equipment involved
Environmental factors
Personnel issues with injured employee(s) (training, competence, attitude, past performance, alcohol/drug use, etc.)
Routine or non-routine task

Consider all the possibilities

The immediate cause?
Contributing factors?
Underlying root causes?
Unpredictable factors?
Alternative theories?

Accident Investigation Reporting

Your report should summarize the facts of the accident and events leading up to it. Include any injuries suffered from the accident, the total of all property damages and any other costs of the accident, and if “human error” was involved, this should be included in the report; however, disciplinary recommendations should not be included as part of the investigation. It is however crucial to include information about the immediate and underlying causes and definitely report any dissenting opinions if the investigation was a team effort.

Management can’t do accident prevention in a vacuum, employees need to be involved. Without their understanding and cooperation, nothing management does will really work in the long run to stop the accidents and injuries.