FOR YOUR EYES ONLY

Current OSHA regulations require that emergency eyewash stations be provided whenever employees may come into contact with chemicals that can cause corrosion, severe irritation, or permanent tissue damage. See Title 8 CCR 5162 (CA) or 29 CFR 1910.151(c) (Fed). Battery charging, battery filling, used battery storage (when the electrolyte may be released due to the condition of the battery), use or dispensing of corrosive chemicals or irritants (often occurring in detail) are processes that require the installation of an eyewash station. Courts have often upheld ANSI standards in enforcement actions.    

OSHA regulations refer to ANSI standards for greater detail in standards and in opinion letters, require employers to refer to ANSI standards regarding eyewash stations.  OSHA inspectors also rely on ANSI standards during enforcement when OSHA regulations fall short on detail. ANSI revised the eyewash standard in 2014 and all eyewash manufacturers follow the latest 2014 standard Z358.1-2014.  This standard is a widely accepted guideline for the proper selection, installation, operation, and maintenance of emergency eyewash station equipment. An interesting discussion on legal implications of ANSI standards is found here https://www.lomont.com/documents/Dembystandardsarticle3-21-2006.pdf. In summary, an employer is well served by complying with ANSI standards. 

ANSI standards should be referred by all employers https://www.gesafety.com/downloads/ANSIGuide.pdf.  This newsletter does not cover all necessary elements of the standard.  We merely summarize some important elements as follows: 

Note 1:     Water hoses, sinks, faucets, showers, and eyewash bottles (sometimes included in first-aid kits) do not comply with Cal/OSHA eyewash standards.  

Note 2:     If there is a water line available in the shop area, then the plumbed unit is preferred as the wall mounted tank requires more maintenance and is expensive to maintain.  Also, if a tech uses the wall mounted unit at 9am, the tech requiring it at 10am goes blind!!! 

Note 3:     The eyewash units should have proper drain available to address the water draining from the unit.  If the unit cannot be plumbed to the shop drain, a 5-gallon plastic bucket can be placed under the eyewash station and disposed of periodically. 

Note 4:     In certain cases, a door opening in the direction of the walking person may be allowed. However, if the chemical hazard is caustic or corrosive such as battery acid in the automobiles, or battery acid in parts departments, then the eyewash station should be directly available and not through a door. 

Note 5:     The handheld drench units support plumbed and self-contained emergency eyewash stations but cannot replace them. In other words, drench hoses are intended only as supplemental units. 

Note 6:     Water temperature delivered shall be tepid (60-100F). 

Note 7:     Use an eyewash tester to ensure water flow covers eyes at no more than 8” above the spray heads. https://cdn.shopify.com/s/files/1/0320/3232/5768/files/Speakman_SE-952_Spec-Sheet.pdf 

All employers must use a checklist to ensure proper operation of the eyewash and an annual performance check (akin to a preventive maintenance) on the eyewash.  The checklist as summarized from ANSI is as follows: 

  • Inspection Frequency: Activate all eyewash stations at least weekly. Inspect all eyewash units annually for compliance with the ANSI Z358.1 standard. 
  • Location: The eyewash station must be located within 10 seconds from the hazard, approximately 55 feet from the hazard. The eyewash station must be located on the same plane as the hazard, and the travel path to the eyewash station must be unobstructed (no doors with handles to open; see Note 4).  
  • Identification: The area around the eyewash station must be well lit, and the unit must include a highly visible sign.
  • The eyewash station washes both eyes simultaneously, and the water flow allows the user to hold the eyes open without exceeding 8 inches above the spray heads. See Note 5. 
  • Spray heads are protected from airborne contaminants. Covers are pushed open by water flow. 
  • The eyewash station delivers at least 0.4 gallons of water per minute for 15 minutes and should have a minimum tank capacity size of 6 gallons. 
  • The water flow pattern should be 33 to 53 inches from floor level and at least 6 inches from the wall or nearest obstruction.   
  • The equipment should stay hands-free with a stay open valve that activates in one second or less. Please note that any valves placed on the supply line to the eyewash station must have their handles removed so no one accidentally shuts down the water supply to the eyewash station. 

Other Important Items: 

  • Clearance: To ensure eyewash units are not obstructed, it is highly recommended that a “Do Not Block” parameter is established. The use of hazard tape can facilitate proper clearance.  
  • Training: All employees who may be exposed to potential eye/face injuries from hazardous material should be trained on the operation of the eyewash unit. This includes where to locate the nearest eyewash unit and the importance of keeping the path to the unit obstruction free.
  • The eyewash station must have clearance 48 inches from the back wall or obstruction and 30 inches total (on sides) with the eyewash station present in the center.  27 inches knee clearance below the unit.
  • The ANSI standard requires that employers provide an accessible workplace to all employees. The eyewash stations must meet wheelchair accessibility requirements as well.
  • A single step up into an enclosure where the equipment can be accessed is not considered to be an obstruction. Additionally, installers should allow for adequate overhead clearance to accommodate the presence of cabinets over a counter or faucet-mounted emergency eyewash so as not to create an additional hazard that could be encountered when using the device. 
  • Purchasing equipment that is manufactured according to ANSI standards and maintenance and inspection of the equipment according to ANSI standards should be considered mandatory to all employers
  • OSHA considers violation of this standard to be a “Serious Violation.”  Penalty is $13,653.  Cost of an eyewash on Amazon is $120 (for wall mounted tank) and $200 for a plumbed unit.  No cost benefit analysis needed here. 

Does Parts Need an Eyewash:  The answer is yes according to CA OSHA Appeals Board (COSHAB) decision.  See Dockets 11-R3D2-1929 through 1931.  A big box warehouse store with multiple outlets in California was cited by Cal/OSHA for failure to have eye wash stations.  The employer appealed to COSHAB stating that the eye wash standard does not apply as the chemicals are merely unloaded, unboxed and placed on shelves in sealed containers by employees.  COSHAB held that the employees can be exposed to leaks and spills from packages damaged in transit and when employees unpack these cases.  Employees involved in cleanup in the warehouse where there is a spill have the potential to an eye injury from corrosive and irritating chemical, hence the requirement of an eyewash in the warehouse.

DISCLAIMER:  The contents of this newsletter are merely for informational purposes only and are not to be considered as legal advice. Employers must consult their lawyer for legal matters and EPA/OSHA consultants for matters related to Environmental, Health & Safety. The article was authored by Sam Celly of Celly Services, Inc. who has been helping automobile dealers in Arizona, California, Hawaii, Idaho, Nevada, New Mexico, New York, Texas, and Virginia comply with EPA and OSHA regulations for over 34 years.  Sam is Certified Safety Professional (No. 16515) certified by National Board of Certified Safety Professionals. Sam received his BE (1984) and MS (1986) in Chemical Engineering, followed by a J.D. from Southwestern University School of Law (1997).  Our newsletters can be accessed at www.epaoshablog.com.  Your comments/questions are always welcome.  Please send them to sam@cellyservices.com.

California Proposition 65: Signs and Details

Proposition 65 has been a requirement for employers and retailers for many years. In 2018, the signs and notifications were changed to include language that notified the public of chemical hazards they had the potential to get exposed to. In the recent few days, we have received a few questions regarding the signs, the size requirements, and the posting requirements.  We must note that there are no new regulations here. This newsletter is merely a review of the changes that took effect in 2018. 

California’s Proposition 65, also called the Safe Drinking Water and Toxic Enforcement Act, was enacted in 1986. It is intended to help Californians make informed decisions about protecting themselves from chemicals known to cause cancer, birth defects, or other reproductive harm. The law had certain nuances not normally seen in toxic chemical regulations. The specific ones that catch our attention are as follows:

  • No Harm Requirement: Most of the regulations require that an actual harm be done before damages be awarded. In this case, the absence of mere warning was sufficient cause for dealers to cough up big money. A penalty of $2500 per day!
  • Standing: In order to litigate, a plaintiff must allege some connection to and actual or potential harm. Under this unique law, without harm but the mere absence of notice was sufficient cause for payment to plaintiff lawyers.
  • Bounty Hunter Clause: Proposition 65 is enforced entirely through litigation. While California’s AG is vested with principal enforcement, Proposition 65 also allows any individual or organization “acting in public interest” to sue for violations. The individuals or organizations can potentially collect attorney fees and 25% of any penalties assessed. Reportedly, 20,000 businesses have paid more than $600 million in penalties since 1987. This makes the case to use your $200 sign kit even stronger!

What Are the Most Significant Changes to the Proposition 65 Warnings For Consumer Products?

Since the original warning requirements took effect in 1988, most Proposition 65 warnings simply stated that a chemical is present that causes cancer or reproductive harm, but they did not identify the chemical or provide specific information about how a person may be exposed or ways to reduce or eliminate exposure to it. New OEHHA regulations, which take effect in August 2018, change the safe harbor warnings which are deemed to comply with the law in several important ways. For example, the new warnings for consumer products will say the product “can expose you to” a Proposition 65 chemical rather than saying the product “contains” the chemical. They will also include:

  • The name of at least one listed chemical that prompted the warning
  • The Internet address for OEHHA’s new Proposition 65 warnings website, http://www.P65Warnings.ca.gov, which includes additional information on the health effects of listed chemicals and ways to reduce or eliminate exposure to them
  • A triangular yellow warning symbol “ ” on most warnings

What Are Other Highlights of the New Warnings System?

The new warning regulation also:

  • Adds new “tailored” warnings that provide more specific information for certain kinds of exposures, products, and places.
  • Provides information for website warnings for products purchased over the Internet
  • Provides information for warnings in languages other than English in some cases
  • Clarifies the roles and responsibilities of manufacturers and retailers in providing warnings.

What is the Purpose of the New Proposition 65 Warnings (effective 2018) Website?

People who read Proposition 65 warnings and want to learn more can go to the website to find additional information about chemicals and best practices for reducing or eliminating exposures. The website contains fact sheets about Proposition 65 chemicals and specific types of exposure, anything from furniture products to enclosed parking facilities. It also answers frequently asked questions about Proposition 65 and includes a glossary of Proposition 65 terms.

Will Businesses Be Required to Provide the New Warnings?

Using the safe harbor warnings is an effective way for businesses to protect themselves against Proposition 65 enforcement actions. Businesses that use the safe harbor warnings are deemed compliant with the law’s requirement for clear and reasonable warnings.

What Circumstances Will Require Warnings in Languages Other Than English?

When a consumer product sign, label or shelf tag used to provide a warning includes consumer information in a language other than English, the warning must also be provided in that language in addition to English. Facilities that provide signage in non-English languages would also have to provide any required warnings in those languages, in addition to English.

For Internet purchases, warnings can be provided by including a clearly marked hyperlink using the word WARNING on the product display page.

What Are the Warning Responsibilities for Manufacturers and Retailers?

The new system clarifies that manufacturers have the primary responsibility for providing Proposition 65 warnings. Manufacturers can choose whether to put warning labels on their products or to provide notices to their distributors, importers or retail outlets that a product may cause an exposure to a listed chemical that requires a warning provide warning signs or other warning materials. Manufacturers can also enter written agreements with retailers to modify this allocation of responsibility as long as the consumer receives a clear and reasonable warning before her or she is exposed to a Proposition 65 chemical.

Retailers must confirm that they received the notice and must use the warning signs or other materials provided by the manufacturer. We attach information related to proposition 65 signs as they may apply to your facility. If you have any questions, please do not hesitate to contact us.

1. Label: Environmental Exposure
Where to Post: All Public Entrances to Showroom.
Size/Font: 72 font
Language Warning: English and in any other language used on other signage at the facility.
2. Label: Food Facilities
Where to Post: Waiting areas or any other areas that sells/serves food
Size/Font: 28 font 8.5”x11”
Language Warning: English and in any other language used on other signage or menus provided at the facility.
3. Label: Smoking Area(s)
Where to Post: Smoking area(s)
Size/Font: 22 font 8.5”x11”
Language Warning: English and in any other language used on other signage in the affected area.
4. Label: Vehicle Exposure Warnings
Where to Post: Driver’s side window of all new and used passenger vehicles for sale
Size/Font: No font size required but 12 font is recommended
Language Warning: No foreign language requirement, but include warning labels on the vehicle in other languages if the vehicle has sale signs in other languages.
5. Label: Vehicle Repair Facilities
Where to Post: All public entrances to service department
Size/Font: 32 font (enclosed in a box)
Language Warning: English and in any
other language used on other signage at the facility.
6. Label: Service Stations & Gas Pumps
Where to Post: Each gas pump
Size/Font: 22 font (enclosed in a box)
Language Warning: English and in any other language used on other signage at the facility.
7. Label: Occupational Exposure
Where to Post: Employee break area(s)
Size/Font: No font size required
Language Warning: English and in any other language used on other signage at the break area.
8. Label: Enclosed Parking Facilities
Where to Post: All entrances to parking structures that have an enclosed ceiling
Size/Font: 72 font
Language Warning: English and if other permanent entrance signage is provided in
any other language at the facility.
9.Label: Lead and Lead Compounds
Where to Post: Parts Counter at front and back.
Size/Font: 32 font
Language Warning: English and in any other language used on other signage at the facility.

Disclaimer:  There is no warranty implied or direct or whatsoever as to the completeness or applicability of these signs presented here.  The dealership must use the Proposition 65 Handbook published by California New Car Dealers Association to stay compliant.  The new CNCDA Proposition 65 Handbook is available upon login in the CNCDA Publications.  Guidance on Proposition 65 from California Office of Environmental Health Hazard Assessment (OEHHA) is available at https://oehha.ca.gov/proposition-65 and must be reviewed to ensure compliance.

Foot Protection Requirements

BACKGROUND: Safety inspections of the shop and parts department have revealed that many employees are not wearing appropriate footwear that can adequately protect them from foot injuries caused by crushing or falling objects, such as a rotor or a battery.  Sharp objects left on the shop floor can also penetrate the shoe and injure the foot. Footwear in the shop area must be slip resistant to protect employees should they encounter slippery surfaces (slip hazards are common due to accidental spills of lubricants in the shop).  The porters are subject to abnormally wet locations (car wash) and as such, their shoes must provide traction.  Recently, an automobile dealer was cited for failure to provide safety shoes.  A penalty of $5850 was assessed by Cal/OSHA for this serious violation.  California Court of Appeals has also upheld a citation against employers not providing proper safety footwear. See Home Depot U.S.A., Inc. v. Cal. Occupational Safety & Health Appeals Bd., E070417 (Cal. Ct. App. Oct. 17, 2019)

 

WHAT DO THE CALIFORNIA REGULATIONS SAY:

The Cal/OSHA regulation (T8CCR3385) is stated as follows:

  1. Appropriate foot protection shall be required for employees who are exposed to foot injuries from electrical hazards, hot, corrosive, poisonous substances, falling objects, crushing, or penetrating actions, which may cause injuries or who are required to work in abnormally wet locations.
  2. Footwear which is defective or inappropriate to the extent that its ordinary use creates the possibility of foot injuries shall not be worn.
  3. (1) Protective footwear for employees purchased after January 26, 2007 shall meet the requirements and specifications in American Society for Testing and Materials (ASTM) F 2412-05, Standard Test Methods for Foot Protection and ASTM F 2413-05, Standard Specification for Performance Requirements for Foot Protection which are hereby incorporated by reference.  The ASTM standard as quoted in the OSHA standard has been updated.  See note below.

 

Note 1: ASTM F2412-18a and ASTM F2413-18 are the most current standards in the industry. ASTM F2413-18 contains basic requirements to evaluate footwear, which include: Impact resistance (I), Compression resistance (C), Metatarsal protection (MT), and Conductive properties (CD) to limit static electricity buildup. In addition to these requirements, this standard requires labeling on the safety footwear to identify specific protections.

Note 2:  Cal/OSHA regulations, as mentioned above, state that footwear that creates the possibility of foot injuries shall not be worn and hence, any shoes that may cause injuries from ordinary use in the shop area should not be used.

WHAT DO THE FEDERAL REGULATIONS SAY: 

Federal Regulation as stated in CFR 1910.136(a) is as follows:  The employer shall ensure that each affected employee uses protective footwear when working in areas where there is a danger of foot injuries due to falling or rolling objects, or objects piercing the sole, or when the use of protective footwear will protect the affected employee from an electrical hazard, such as a static-discharge or electric-shock hazard, that remains after the employer takes other necessary protective measures.

Note 3:  The criteria for protective footwear is listed in 1910.136(b)(1)(i) where the footwear must meet the ASTM F-2412-2005, “Standard Test Methods for Foot Protection,” and ASTM F-2413-2005, “Standard Specification for Performance Requirements for Protective Footwear,” which are incorporated by reference in § 1910.6.  As noted above the ASTM regulations have been updated in 2018 and should be used for selection of footwear.

 

BEST PROTECTION:  Shoes for staff must meet ASTM standard as listed in Note(s) above.  The shoe must have metatarsal protection with a skid resistance sole. Metatarsal protectors consist of a guard that fits over the instep protecting the top of the foot from heavy items and are normally manufactured from aluminum, steel, or lightweight composites.  The car wash staff and any staff that encounter slippery surfaces must also wear shoes with soles that provide slip resistance and good traction.

HAZARD ASSESSMENT: OSHA regulations require that the employer conduct a workplace hazard assessment and provide PPE for protection from physical and health hazards present at the workplace.  If the hazard assessment of parts and service employees indicates the possibility of a foot hazard injury from falling objects, PPE should be provided.  See Title 8 California Code of Regulations Section 3380.  Fed-OSHA requirements on Hazard Assessment and Personal Protective Equipment selection are listed under CFR 1910.132 (a-d).

 

WHO PAYS-CA: The California Labor Code requires employers to “furnish and use safety devices and safeguards…” (Labor Code § 6401). The term “safety device” includes “any practicable method of mitigating or preventing” danger. Protective footwear is covered as a safety device. The Labor Code also requires employers to “provide and use safety devices and safeguards reasonably adequate to render the employment and place of employment safe.” (Labor Code § 6403).  Legal opinion on this matter has been made clear by the California Supreme Court. The Court has ruled that the words “provide” and “furnish” mean that the employer both supplies and pays for the personal protective gear.  (See Bendix Forest Products Corp. v. Division of Occupational Safety & Health (1979) 25 Cal. 3rd 465, 471-473).

 

WHO PAYS-Federal:  The shoes with metatarsal protection and slip resistant shoes are considered specialty footwear and require the employer to pay for the protective footwear.  OSHA has exempted employers from payment when the safety shoes are non-specialty type.

 

PROTECTIVE SHOE POLICY & ENFORCEMENT: The employer must provide shoes to each employee subject to foot injury hazards. Since shoes must be fitted for size and comfort, it is practical to seek help from a professional shoe supply company. Replacement upon wear and tear of the PPE is also the responsibility of the employer, along with instructions on proper usage, care, cleanliness, and maintenance. A written protective footwear policy should be adopted and distributed to all employees, and employee acknowledgment should be retained in files. Enforcement of policy, along with disciplinary action against employees violating the policy must also be put into effect.

 

SUMMARY: Proper footwear for certain employees is not an option but is a requirement under the law. Employees with their feet protected are less likely to be injured from falling objects. Shoes with good traction help mitigate slip and fall hazards. Fewer injuries translate to fewer workers’ compensation claims and a reduction in related premiums. Improved productivity, better employee morale, and increased shop efficiency are also a given. 

DISCLAIMER:  The contents of this newsletter are merely for informational purposes only and are not to be considered as legal advice.   Employers must consult their lawyer for legal matters and EPA/OSHA consultants for matters related to Environmental, Health & Safety. The article was authored by Sam Celly of Celly Services, Inc. who has been helping automobile dealers comply with EPA and OSHA regulations since 1987.  Sam received his BE (1984) and MS (1986) in Chemical Engineering, followed by a J.D. from Southwestern University School of Law (1997).  Our newsletters can be accessed at www.epaoshablog.com.  Your comments/questions are always welcome.  Please send them to sam@cellyservices.com.

POST YOUR INJURY LOG (300A) ON EMPLOYEE NOTICE BOARD 2-1-21 TO 4-30-21 LOG 300, 300A & 301 REQUIRED FOR AUTO DEALERS

POST YOUR INJURY LOG (300A) ON EMPLOYEE NOTICE BOARD

2-1-21 TO 4-30-21

LOG 300, 300A & 301 REQUIRED FOR AUTO DEALERS

 

Background: Cal/OSHA and Fed-OSHA require auto dealers and other employers to keep a record of occupational injuries and illnesses using OSHA Log 300 and to post a summary on the employee notice board from February 1 to April 30, 2021

 

Forms & Guidance to Fill: Fed-OSHA and Cal/OSHA forms are identical in nature.

 

California Forms: https://www.dir.ca.gov/dosh/DoshReg/ApndxA300Final.pdf (Fillable Form)

Cal/OSHA exempts certain industries: https://www.dir.ca.gov/t8/14300_2.html

 

Federal-OSHA: https://www.osha.gov/recordkeeping/RKforms.html

·        OSHA Form 300 – Log of Work-Related Injuries & Illnesses

·        OSHA Form 300A – Summary of Work-Related Injuries & Illnesses

·        OSHA Form 301 – Injury & Illness Incident Report

Fed-OSHA exempts certain industries: https://www.osha.gov/recordkeeping/ppt1/RK1exempttable.html

 

Posting Requirements: Form 300A (Summary of Work-Related Injuries & Illnesses) for 2020 must be posted on the employee notice board from February 1, 2021 to April 30, 2021. ONLY Form 300A needs to be posted. Disclosing injured employee name on the notice board is a big no-no.

 

Cal/OSHA Guide on Completing Forms: http://www.dir.ca.gov/dosh/dosh_publications/reckeepoverview.pdf

 

Fed-OSHA Guide on Completing Forms: https://www.osha.gov/recordkeeping/tutorial.html 

 

Tutorial for Completing Forms: A tutorial is available to assist in completing the forms at https://www.osha.gov/recordkeeping/tutorial.html 

 

Recordkeeping Questions & Answers: See https://www.osha.gov/recordkeeping

 

First-Aid Not Recordable on Log 300: First-aid is https://www.osha.gov/recordkeeping/firstaid_list.pdf​.

 

Serious Injury: Call your local OSHA office to report serious injury. Cal/OSHA’s phone number is on the employee labor law poster. Fed-OSHA reporting line is 1-800-321-6742 (OSHA). California and Federal definitions of serious injury differ. California Code on reporting serious injury is https://www.dir.ca.gov/title8/342.html.  

 

Commentary: The forms are provided as a tool for the employer to document injuries, inform employees of accidents at the facility and allow OSHA inspectors to obtain a quick summary of accidents in the workplace. 

Employers must use this log as a management tool to gauge the nature and frequency of injuries in order to determine corrective measures for accident elimination and counsel employees who show up on the accident log on a repeated basis. Certain highlights of the forms are as follows:

·     Requires records to include any work-related injury or illness resulting in one of the following: death, days away from work, restricted work or transfer to another job, medical treatment beyond first-aid, loss of consciousness, or diagnosis of a significant injury or illness by a physician or other licensed health care professional. 

·     Requires a significant degree of aggravation before a preexisting injury or illness becomes recordable.

·     Requires employers to record cases when injured or ill employees are restricted from their “normal duties,” which are defined as work activities employees regularly perform at least once per week.

·     You may stop counting days of restricted work activity or days away from work once the total of either or the combination of both reaches 180 days.

·     Focus on days away or days restricted or transferred. Rules rely on calendar days instead of workdays!

·     Requires employers to establish a procedure for employees to report injuries and illnesses and to tell their employees how to report. Employers are prohibited from discriminating against employees who report. Employee representatives will have access to those parts of OSHA Form 301 relevant to the employees they represent.

 

Cal/OSHA Reporting Guidelines: An employee trips in the service driveway of your dealership during normal course of business and seeks medical treatment. Employee comes back to work the next day but continues treatment of physiotherapy and medication. After 6 months, the MD states that only surgery can cure the knee problem and the employee proceeds with knee replacement surgery. The issue is whether this knee accident is now Cal/OSHA reportable as a serious injury accident. Yes, the accident must be reported to Cal/OSHA under the serious injury reporting statutes (Section 342). Employers are required to report incidents within 8 hours to Cal/OSHA as follows:

·     Any fatality.

·     Any inpatient hospitalization for work related injury or illness, for anything other than medical observation or diagnostic testing must be reported.

·     An amputation, the loss of an eye, or any serious degree of permanent disfigurement, but does not include any injury or illness or death caused by an accident on a public street or highway, unless the accident occurred in a construction zone.

 

Fed-OSHA Reporting Guidelines: Employers have to report the following events to Fed-OSHA:

·     All work-related fatalities

·     All work-related in-patient hospitalizations of one or more employees

·     All work-related amputations

·     All work-related losses of an eye

Employers must report work-related fatalities within 8 hours of finding out about it.

For any in-patient hospitalization, amputation, or eye loss employers must report the incident within 24 hours of learning about it.

Only fatalities occurring within 30 days of the work-related incident must be reported to OSHA. Furthermore, for an inpatient hospitalization, amputation or loss of an eye, then incidents must be reported to OSHA only if they occur within 24 hours of the work-related incident.

 

Questions Asked During Reporting:

1.  Time and date of accident/event

2.  Employer’s name, address and telephone number

3.  Name and job title of the person reporting the accident

4.  Address of accident/event site

5.  Name of person to contact at accident/event site

6.  Name and address of injured employee(s)

7.  Nature of injuries

8.  Location where injured employee(s) was/were taken for medical treatment

9.  List and identity of other law enforcement agencies present at the accident/event site

10.  Description of accident/event and whether the accident scene or instrumentality has been altered.

 

Electronic Recordkeeping Submission: Establishments with 250 or more employees that are currently required to keep OSHA injury and illness records must electronically submit information from OSHA Forms 300 — Log of Work-Related Injuries and Illnesses, 300A — Summary of Work-Related Injuries and Illnesses, and 301 — Injury and Illness Incident Report. See https://www.osha.gov/Publications/OSHA3862.pdf.

 

 

 

 

 

DISCLAIMER: The contents of this newsletter are merely for informational purposes only and are not to be considered as professional advice. Information from www.osha.gov was used to prepare part of this newsletter. Employers must consult their lawyer for legal matters and safety consultants for matters related to safety. The article was authored by Sam Celly of Celly Services, Inc. who has been helping automobile dealers comply with EPA & OSHA regulations since 1987. Sam received his BE (1984) and MS (1986) in Chemical Engineering followed by a J.D. from Southwestern University School of Law (1997). Our newsletters can be accessed at www.epaoshablog.com. Your comments/questions are always welcome. Please send them to sam@cellyservices.com.

Cal/OSHA Emergency Temporary Standard (ETS) Effective December 1, 2020 to October 2, 2021

California has enacted regulations that require employers to comply with a series of employee health & safety and workers’ comp regulations.  The regulations are lengthy and complex. This newsletter highlights Cal/OSHA Emergency Temporary Standard (ETS) and COVID-19 ETS FAQ. The ETS is currently effective till October 2, 2021 and may be readopted twice thereby extending the effective life of this regulation.  Legal challenges to ETS by employer trade groups are pending in LA County and San Francisco Courts and a possible adverse ruling to the ETS may provide relief to employers.

Key Definitions:

  1. “COVID-19” means coronavirus disease, an infectious disease caused by the severe acute respiratory syndrome coronavirus 2 (SARS-CoV-2).
  2. “COVID-19 case” means a person who:
    1. Has a positive “COVID-19 test” as defined in this section;
    2. Is subject to a COVID-19-related order to isolate issued by a local or state health official; or
    3. Has died due to COVID-19, in the determination of a local health department . . .
  3. “COVID-19 exposure” means being within six feet of a COVID-19 case for a cumulative total of 15 minutes or greater in any 24-hour period.
  4. “COVID-19 hazard” means exposure to potentially infectious material that may contain SARS-CoV-2
  5. “Exposed workplace” means any work location, working area, or common area at work used or accessed by a COVID-19 case during the high-risk period.
  6. “COVID-19 Outbreak” means three or more COVID-19 cases in an exposed workplace within a 14-day period. The employer shall contact the local health department immediately but no longer than 48 hours after the employer knows of three or more COVID-19 cases for guidance on preventing the further spread of COVID-19 within the workplace.

The COVID-19 Prevention Program: To comply with the ETS, an employer must develop a written COVID-19 Prevention Program. The employer must implement the following:

  1. Communication to employees about the employer’s COVID-19 prevention procedures
  2. Identify, evaluate, and correct COVID-19 hazards
  3. Physical distancing of at least six feet unless it is not possible
  4. Use of face coverings
  5. Use engineering controls, administrative controls and personal protective equipment as required to reduce transmission risk
  6. Procedures to investigate and respond to COVID-19 cases in the workplace
  7. Provide COVID-19 training to employees
  8. Provide testing to employees who are exposed to a COVID-19 case, and in the case of multiple infections or a major outbreak, implement regular workplace testing for employees in the exposed work areas
  9. Exclusion of COVID-19 cases and exposed employees from the workplace until they are no longer an infection risk
  10. Maintain records of COVID-19 cases and report serious illnesses and multiple cases to Cal/OSHA and the local health department, as required.
  11. Return to work criteria.

 

COVID-19 ETS FAQ:

Q: What is the criteria for an employee exposed to a COVID-19 case in the workplace to return to work?
A: Employees with COVID-19 exposure may return to the workplace 14 days after the last known COVID-19 exposure.

Q: What training must an employer provide employees under the ETS?
A: Employee training must cover:

  • Employer policies and procedures to protect employees from COVID-19 hazards.
  • COVID-19 related benefit information, from either the employer or from federal, state, or local government, that may be available to employees impacted by COVID-19. Information on COVID-19 benefits such as paid sick leave and workers’ compensation benefits is posted on the Department of Industrial Relations’ Coronavirus Resources webpage.
  • The fact that COVID-19 is an infectious disease that can be spread through the air when an infectious person talks or vocalizes, sneezes, coughs, or exhales; that COVID-19 may be transmitted when a person touches a contaminated object and then touches their eyes, nose, or mouth, although that is less common; and that an infectious person may show no symptoms.
  • The importance of physical distancing and wearing face coverings.
  • The fact that particles containing the virus can travel more than six feet, especially indoors, so physical distancing must be combined with other controls, including face coverings and hand hygiene, to be effective.
  • The importance of frequent hand washing for at least 20 seconds and use of hand sanitizer when handwashing facilities are not available.
  • Proper use of face coverings, and the fact that they are not respiratory protection.
  • The symptoms of COVID-19 and the importance of not coming to work and getting tested if an employee has symptoms.

Q: What are the criteria for a COVID-19 case to return to work?
A: A COVID-19 case may return to work when any of the following occur:

  • For employees with symptoms all of these conditions must be met:
    1. At least 24 hours have passed since a fever of 100.4 or higher has resolved without the use of fever-reducing medications.
    2. COVID-19 symptoms have improved; and
    3. At least 10 days have passed since COVID-19 symptoms first appeared.
  • For employees without symptoms, at least 10 days have passed since the COVID-19 case’s first positive test.
  • If a licensed health care professional determines the person is not/is no longer a COVID-19 case, in accordance with California Department of Public Health (CDPH) or local health department recommendations.

Q: What engineering controls and administrative controls must an employer implement?
A: Requirements include:

  • Engineering controls
    • Install cleanable solid partitions that reduce the risk of aerosol transmission between fixed work locations where it is not possible to physically distance (such as Plexiglas barriers)
    • Maximize the amount of outside air to the extent feasible, unless there is poor outside air quality (an AQI of 100 or higher for any pollutant) or some other hazard to employees such as excessive heat or cold
  • Administrative controls
    • Implement effective cleaning procedures of commonly touched surfaces, such as doorknobs, elevator buttons, equipment, tools, handrails, handles, controls, bathroom surfaces, and steering wheels
    • Inform employees and employees’ authorized representatives of cleaning and disinfection protocols and planned frequency and scope of cleaning
    • Minimize to the extent feasible the sharing of tools, equipment and vehicles
    • If tools, equipment and vehicles must be shared, disinfect between users

Cal/OSHA has posted a Model COVID-19 Prevention Program on its website for employers fill out and use.

Reference: https://www.dir.ca.gov/dosh/coronavirus/COVID19FAQs.html; https://www.dir.ca.gov/dosh/coronavirus/ETS.html; dl 01052021

DISCLAIMER:  The contents of this newsletter are merely for informational purposes only and are not to be considered as legal advice.   Employers must consult their lawyer for legal matters and EPA/OSHA consultants for matters related to Environmental, Health & Safety. The article was authored by Sam Celly of Celly Services, Inc. who has been helping automobile dealers comply with EPA and OSHA regulations since 1987.  Sam received his BE (1984) and MS (1986) in Chemical Engineering, followed by a J.D. from Southwestern University School of Law (1997).  Our newsletters can be accessed at http://www.epaoshablog.com.  Your comments/questions are always welcome.  Please send them to sam@cellyservices.com.

FAQ: Cal/OSHA Recording and Reporting Requirements for COVID-19 Cases

Frequently Asked Questions – RECORDING INJURIES ON LOG

  1. Do employers have to record COVID-19 illnesses on their Log 300?

Yes, California employers that are required to record work-related fatalities, injuries and illnesses must record a work-related COVID-19 fatality or illness like any other occupational illness. To be recordable, an illness must be work-related and result in one of the following:

    • Death.
    • Days away from work.
    • Restricted work or transfer to another job.
    • Medical treatment beyond first aid.
    • Loss of consciousness.
    • A significant injury or illness diagnosed by a physician or other licensed health care professional.

If a work-related COVID-19 case meets one of these criteria, then covered employers in California must record the case on their 300, 300A and 301 or equivalent forms.  For work-related criteria, see Question 3 below.

See California Code of Regulations, title 8, Chapter 7, Subchapter 1, Article 2, Employer Records of Occupational Injury or Illness for details on which employers are obligated to report and other requirements.

  1. Does a COVID-19 case have to be confirmed to be recordable?

Pursuant to recent federal OSHA guidance, a COVID-19 case should generally be confirmed through testing to be recordable. However, due to testing shortages and a variety of other reasons, not all persons determined to have COVID-19 have been tested.

Thus, while Cal/OSHA considers a positive test for COVID-19 determinative of recordability, a positive test result is not necessary to trigger recording requirements. There may be other situations in which an employer must make a recordability determination even though testing did not occur, or the results are not available to the employer. In these instances, the case would be still be recordable if it meets any one of the other general recording criteria from Section 14300.7 described above, such as resulting in days away from work. Cal/OSHA recommends erring on the side of recordability.

  1. How does an employer determine if a COVID-19 case is work-related for recordkeeping purposes?

For recordkeeping purposes, an injury or illness is considered work-related if an event or exposure in the work environment either caused or contributed to the resulting condition, or significantly aggravated a pre-existing injury or illness. An injury or illness is presumed to be work-related if it results from events or exposures occurring in the work environment unless an exception in section 14300.5(b)(2) specifically applies.

A work-related exposure in the work environment would include interaction with people known to be infected with COVID-19 working in the same area where people known to have been carrying COVID-19 had been; or sharing tools, materials or vehicles with persons known to have been carrying COVID-19. Given the disease’s incubation period of 3 to 14 days, exposures will usually be determined after the fact.

If there is not a known exposure that would trigger the presumption of work-relatedness, the employer must evaluate the employee’s work duties and environment to determine the likelihood that the employee was exposed during the course of their employment.  Employers should consider factors such as:

    • The type, extent, and duration of contact the employee had at the work environment with other people, particularly the public.
    • Physical distancing and other controls that impact the likelihood of work-related exposure.
    • Whether the employee had work-related contact with anyone who exhibited signs and symptoms of COVID-19.

See title 8 section 14300.5 for details and the exceptions.

  1. Is time an employee spends in quarantine considered “days away from work” for recording purposes?

No. Unless the employee also has a work-related illness that would otherwise require days away from work, time spent in quarantine is not “days away from work” for recording purposes.

Frequently Asked Questions – REPORTING INJURIES to Cal/OSHA

  1. When do employers have to report COVID-19 illnesses to Cal/OSHA immediately?

In addition to the recordkeeping requirements discussed above, California employers must also report to Cal/OSHA any serious illness, serious injury or death of an employee that occurred at work or in connection with work within eight hours of when they knew or should have known of the illness. (See section 342(a).) This includes a COVID-19 illness if it meets the definition of serious illness.  Failure to report carries a penalty of $5,000.

A serious illness includes, among other things, any illness occurring in a place of employment or in connection with any employment that requires inpatient hospitalization for other than medical observation or diagnostic testing. (See section 330(h).) This means that if a worker becomes ill while at work and is admitted as in-patient at a hospital — regardless of the duration of the hospitalization — the illness occurred in a place of employment, so the employer must report this illness to the nearest Cal/OSHA office. Reports must be made immediately, but not longer than eight hours after the employer knows or with diligent inquiry would have known of the serious illness.

 

 

Fed-OSHA Reporting Guidelines:  Employers have to report the following events to Fed-OSHA:

  • All work-related fatalities
  • All work-related in-patient hospitalizations of one or more employees
  • All work-related amputations
  • All work-related losses of an eye

Employers must report work-related fatalities within 8 hours of finding out about it. For any in-patient hospitalization, amputation, or eye loss employers must report the incident within 24 hours of  learning about it. Only fatalities occurring within 30 days of the work-related incident must be reported to OSHA. Further, for an inpatient hospitalization, amputation, or loss of an eye, then incidents must be reported to OSHA only if they occur within 24 hours of the work-related incident.

 

 

  1. What if the employee became sick at work but the illness is not work-related?

For reporting purposes, if the employee became sick at work, it does not matter if the illness is work-related. Employers must report all serious injuries, illnesses or deaths occurring at work without making a determination about work-relatedness. For some diseases such as COVID-19, associated respiratory symptoms such as difficulty breathing can be caused by a variety of occupational exposures. It is important for employers to report these cases to Cal/OSHA so that the Division can make the preliminary determination of work-relatedness.

  1. What if an employee started to show symptoms outside of work?

Reportable illnesses are not limited to instances when the employee becomes ill at work. Serious illnesses include illnesses contracted “in connection with any employment,” which can include those contracted in connection with work but with symptoms that begin to appear outside of work. An employer should report a serious illness if there is cause to believe the illness may be work-related, regardless of whether the onset of symptoms occurred at work.

For COVID-19 cases, evidence suggesting transmission at or during work would make a serious illness reportable. An employer should consider factors similar to those described above in the answer to Question 3 under Recording:

    • Multiple cases in the workplace.
    • The type, extent, and duration of contact the employee had at the work environment with other people, particularly the public.
    • Physical distancing and other controls that impact the likelihood of work-related exposure.
    • Whether the employee had work-related contact with anyone who exhibited signs and symptoms of COVID-19.

Where there is uncertainty about whether an employee contracted COVID-19 at work, the employer should err on the side of reporting the illness to Cal/OSHA.  Reporting a serious injury will trigger an OSHA investigation that may lead to further penalties, an employer is well served to determine whether the injury is work related or not as soon as possible.

  1. Do I report an illness even if COVID-19 has not yet been diagnosed?

Yes, even if a suspected COVID-19 case has not been diagnosed by a licensed health professional, an employer should still report it to Cal/OSHA if the illness occurred in connection to any employment related issue as described above and if it resulted in death or in-patient hospitalization.

  1. Am I admitting to liability when I report a serious illness?

No. Reporting a serious illness is not an admission that the illness is work-related, nor is it an admission of responsibility.

  1. How does the Governor’s Executive Order on COVID-19 and workers’ compensation eligibility affect Cal/OSHA reporting and recording requirements?

Governor Newsom’s Executive Order N-62-20 addresses eligibility for workers compensation benefits. FAQs on the Order are available on Cal/OSHA’s website. The Order does not alter employers’ reporting and recording obligations under Cal/OSHA regulations.

Source: https://www.dir.ca.gov/dosh/coronavirus/Reporting-Requirements-COVID-19.html

DISCLAIMER:  The contents of this newsletter are merely for informational purposes only and are not to be considered as legal advice.   Employers must consult their lawyer for legal matters and EPA/OSHA consultants for matters related to Environmental, Health & Safety.  Our newsletters can be accessed at www.epaoshablog.com.  Your comments/questions are always welcome.  Please send them to sam@cellyservices.com.

How to Handle OSHA Investigations

As of April 17, 2020, Cal/OSHA had received over 1,500 complaints about employers who allegedly failed to provide proper protection during the ongoing pandemic related to the COVID-19 crisis.  OSHA’s investigative powers are limited in their ability to fully investigate all these complaints.  Cal-OSHA Reporter noted that in the first quarter of 2019, OSHA had investigated only 488 complaints.  For 2020, the number of investigations will likely increase.

 

WHAT IS OSHA LOOKING FOR:  The regulations that allow OSHA to investigate COVID-19 related complaints at auto dealerships are as follows:

Personal Protective Equipment:  Personal Protective Equipment (PPE) requires using gloves, eye and face protection, and respiratory protection when job hazards warrant it.  When respirators are necessary to protect workers, employers must implement a comprehensive respiratory protection program in accordance with the Respiratory Protection standard.  Compliance requires an assessment of hazards and then proving proper PPE that addresses those hazards.  PPE must be provided at no cost and employees provided with training in proper usage.

Hazard Communication Program:  Employers must also protect their workers from exposure to hazardous chemicals used for cleaning and disinfection. Employers should be aware that common sanitizers and sterilizers could contain hazardous chemicals. Where workers are exposed to hazardous chemicals, employers, must comply with this standard.  Requirements include a written program, providing SDS, proper labels on containers and training on understanding the hazards related to chemicals in use.

General Duty Clause:  The clause requires employers to provide each worker “a place of employment, which [is] free from recognized hazards that are causing or are likely to cause death or serious physical harm.”  This is literally the catch-all provision that OSHA inspectors can use when no standard seems to be violated.

HOW TO HANDLE AN OSHA INSPECTION

Inspections are always conducted without advance notice.  As a matter of policy, it is considered acceptable that the OSHA inspector may be kept wait for 20-minutes prior to the inspection process beginning  Management can alert all responsible Managers on the premises regarding the presence of OSHA and possible involvement in the inspection process.

 

WHAT DOES THE INSPECTION PROCESS INVOLVE?

Inspectors’ Credentials: When the OSHA compliance officer arrives at the establishment, he or she displays official credentials and asks to meet an appropriate employer representative.  In the opening conference, the compliance officer explains how the establishment was selected and what the likely scope of the inspection will be. Take written notes during the opening conference and note the scope indicated by the inspector.

The compliance officer asks the employer to select an employer representative to accompany the compliance officer during the inspection. This person must stay with the inspector until departure from the company premises.

Limitation on OSHA Inspections:  OSHA has limitations on inspection authority when visiting a place of employment. OSHA officers may try to expand the scope of inspection during the visit and upon informed consent may proceed to collect evidence that can significantly increase the violations detected and related penalties. Therefore, it is critical that the employer only provides OSHA with access to the location that is related to the underlying cause of inspection.  Such boundaries must be established during the opening conference with the OSHA officer.

 

In a recent case, the US Court of Appeals limited the scope of inspection available to OSHA.  The case involved an employee who was injured while repairing an electrical panel.  See USA v. Mar-Jac Poultry, Inc., No. 16-17745 (11th Cir. 2018).  The employee was hospitalized triggering a report to OSHA under federal regulations. OSHA inspected the facility and was granted access by the employer to look at the electrical panel area. Upon request, OSHA inspectors were provided Injury Log 300 by the employer. Upon review of Log 300, OSHA filed for a search warrant to investigate other locations at the plant where the injuries as reported on the Log 300 had occurred. The search warrant was granted. Subsequently, the employer filed a motion to vacate the search warrant which was granted by the District Court. OSHA appealed the lower court’s decision to the 11th Circuit Court of Appeals.

 

The appeals court held that logs are merely records of injuries and not proof of OSHA violations. The mere existence of injuries, the court noted in this case, does not mean that injuries were caused by OSHA violations, nor do they justify the issuance of administrative warrant for gathering evidence of OSHA violations. Recordkeeping regulations as found in 29 CFR Part 1904 state that the recording of injuries on Log 300 does not mean that an employer is at fault or that an OSHA violation has occurred. This decision serves as guidance to employers to limit OSHA inspections to the complaint area. Unless the employer consents, a judicial warrant is required under the Fourth Amendment. If OSHA wishes to expand its search under information procured during initial inspection, the employer should seek legal counsel to limit the inspection as available under the current law.

Walk-Through: Do not allow the inspector to veer in a direction not agreed in the scope at the opening conference! The compliance officer will observe safety, health conditions, and practices.

When compliance officer finds a violation in open view, called the “plain view exception,” the scope of inspection now incorporates the plain view observation. The employer may shut down the area of the shop where the inspector will  walk-through.  The compliance officer may wish to interview employees to get their opinion of the accident at the workplace.

Closing Conference: At the conclusion of the inspection, the compliance officer conducts a closing conference with the employer.  The compliance officer gives the employer and all other parties involved a copy of Employer Rights and Responsibilities Following an OSHA Inspection for their review and discussion. The compliance officer discusses with the employer all unsafe or unhealthy conditions observed during the inspection and indicates all apparent violations for which he or she may issue or recommend a citation and a proposed penalty. The compliance officer will inform the employer of appeal rights.

The office will request documents related to the inspection be mailed to OSHA in a specified time.  Discuss the documents prior to submission with your counsel.  At times, documents may be held back for reasons of privacy or relevance.

CITATIONS & PENALTIES ?

Citations: OSHA citations inform the employer and employees of the regulations and standards alleged to have been violated and note the proposed length of time set to correct alleged violations. The employer must post a copy of each citation at or near the place a violation occurred for 3 days or until the violation is abated, whichever is longer.  Certain notable violations for general industry in California for 2010-2016 can be found at https://www.dir.ca.gov/dosh/citation.html

 

Sam Celly of Celly Services, Inc. has been helping automobile dealers comply with EPA and OSHA regulations since 1987.  Sam received his BE (1984) and MS (1986) in Chemical Engineering, followed by a J.D. from Southwestern University School of Law (1997).  His newsletters can be accessed at www.epaoshablog.com.  Your comments/questions are always welcome.  Please send them to sam@cellyservices.com.

COVID-19 FREQUENTLY ASKED QUESTIONS: FACE MASKS, SURGICAL MASKS & RESPIRATORS

 

What are the key differences between cloth face coverings, surgical masks, and respirators?

Cloth face coverings:

§  May be commercially produced or improvised (i.e., homemade) garments, scarves, bandanas, or items made from t-shirts or other fabrics.

§  Are worn in public over the nose and mouth to contain the wearer’s potentially infectious respiratory droplets produced when an infected person coughs, sneezes, or talks and to limit the spread of SARS-CoV-2, the virus that causes Coronavirus Disease 2019 (COVID-19), to others.

§  Are not considered personal protective equipment (PPE).

§  Will not protect the wearer against airborne transmissible infectious agents due to loose fit and lack of seal or inadequate filtration.

§  Are not appropriate substitutes for PPE such as respirators (e.g., N95 respirators) or medical face masks (e.g., surgical masks) in workplaces where respirators or face masks are recommended or required to protect the wearer.

§  May be used by almost any worker, although those who have trouble breathing or are otherwise unable to put on or remove a mask without assistance should not wear one.

§  May be disposable or reusable after proper washing.

Surgical masks:

§  Are typically cleared by the U.S. Food and Drug Administration as medical devices (though not all devices that look like surgical masks are actually medical-grade, cleared devices).

§  Are used to protect workers against splashes and sprays (i.e., droplets) containing potentially infectious materials. In this capacity, surgical masks are considered PPE. Under OSHA’s PPE standard (29 CFR 1910.132), employers must provide any necessary PPE at no-cost to workers.1

§  May also be worn to contain the wearer’s respiratory droplets

§  Will not protect the wearer against airborne transmissible infectious agents due to loose fit and lack of seal or inadequate filtration.

§  May be used by almost anyone.

§  Should be properly disposed of after use.

Respirators (e.g., filtering facepieces):

§  Are used to prevent workers from inhaling small particles, including airborne transmissible or aerosolized infectious agents.

§  Must be provided and used in accordance with OSHA’s Respiratory Protection standard (29 CFR 1910.134).

o    Must be certified by the National Institute for Occupational Safety and Health (NIOSH).

o    OSHA has temporarily exercised its enforcement discretion concerning supply shortages of disposable filtering facepiece respirators (FFRs), including as it relates to their extended use or reuseuse beyond their manufacturer’s recommended shelf lifeuse of equipment from certain other countries and jurisdictions, and decontamination.

o    Need proper filter material (e.g., N95 or better) and, other than for loose-fitting powered, air purifying respirators (PAPRs), tight fit (to prevent air leaks).

o    Require proper training, fit testing, availability of appropriate medical evaluations and monitoring, cleaning, and oversight by a knowledgeable staff member.  Automotive body shops are mandated to follow this requirement when refinishing automobiles.

o    OSHA has temporarily exercised its enforcement discretion concerning annual fit testing requirements in the Respiratory Protection standard (29 CFR 1910.134), as long as employers have made good-faith efforts to comply with the requirements of the standard and to follow the steps outlined in the March 14, 2020, and April 8, 2020, memoranda (as applicable to their industry).

o    When necessary to protect workers, require a respiratory protection program that is compliant with OSHA’s Respiratory Protection standard (29 CFR 1910.134). OSHA consultation staff can assist with understanding respiratory protection requirements.

o    FFRs may be used voluntarily, if permitted by the employer. If an employer permits voluntary use of FFRs, employees must receive the information contained in Appendix D of OSHA’s Respiratory Protection standard (29 CFR 1910.134).

1 If surgical masks are being used only as source control—not to protect workers against splashes and sprays (i.e., droplets) containing potentially infectious materials—OSHA’s PPE standards do not require employers to provide them to workers. However, the General Duty Clause, Section 5(a)(1) of the Occupational Safety and Health Act, requires each employer 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. Control measures may include a combination of engineering and administrative controls, including safe work practices like social distancing. Choosing to ensure use of surgical masks for source control may constitute a feasible means of abatement as part of a control plan designed to address hazards from SARS-CoV-2, the virus that causes COVID-19.

Are employers required to provide cloth face coverings to workers?

Cloth face coverings are not considered personal protective equipment (PPE) and are not intended to be used when workers need PPE for protection against exposure to occupational hazards. As such, OSHA’s PPE standards do not require employers to provide them.

§  The General Duty Clause, Section 5(a)(1) of the Occupational Safety and Health Act, requires each employer 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. Control measures may include a combination of engineering and administrative controls, safe work practices like social distancing, and PPEWe at CSI recommend that employers provide face protection at no cost to employees and enforce mandatory usage.  Visitors should be provided with masks at no cost and be required to wear them while on premises.  Certain counties and cities have mandated their use by all when in a commercial establishment.

§  When transmission risk that cannot be controlled through engineering or administrative controls, including social distancing, employer must use cloth face coverings as a means of source control.

Should workers wear a cloth face covering while at work, in accordance with the Centers for Disease Control and Prevention recommendation for all people to do so when in public?

OSHA generally recommends that employers encourage workers to wear face coverings at work. Face coverings are intended to prevent wearers who have Coronavirus Disease 2019 (COVID-19) without knowing it (i.e., those who are asymptomatic or pre-symptomatic) from spreading potentially infectious respiratory droplets to others. This is known as source control.

Consistent with the Centers for Disease Control and Prevention (CDC) recommendation for all people to wear cloth face coverings when in public and around other people, wearing cloth face coverings, if appropriate for the work environment and job tasks, conserves other types of personal protective equipment (PPE), such as surgical masks, for healthcare settings where such equipment is needed most.

Employers have the discretion to determine whether to allow employees to wear cloth face coverings in the workplace based on the specific circumstances present at the work site. For some workers, employers may determine that wearing cloth face coverings presents or exacerbates a hazard. For example, cloth face coverings could become contaminated with chemicals used in the work environment, causing workers to inhale the chemicals that collect on the face covering. Over the duration of a work shift, cloth face coverings might also become damp (from workers breathing) or collect infectious material from the work environment (e.g., droplets of other peoples’ infectious respiratory secretions). Workers may also need to use PPE that is incompatible with the use of a cloth face covering (e.g., an N95 filtering facepiece respirator).

Where cloth face coverings are not appropriate in the work environment or during certain job tasks (e.g., because they could become contaminated or exacerbate heat illness), employers can provide PPE, such as face shields and/or surgical masks, instead of encouraging workers to wear cloth face coverings. Like cloth face coverings, surgical masks and face shields can help contain the wearer’s potentially infectious respiratory droplets and can help limit spread of COVID-19 to others.

Note that cloth face coverings are not considered PPE and cannot be used in place of respirators when respirators are otherwise required.

Learn more about cloth face coverings on the CDC website.

Employers should consider evaluating their accessible communication policies and procedures to factor in potentially providing masks with clear windows to facilitate interaction between employees and members of the public who need to lip-read to communicate.

If I wear a reusable cloth face covering, how should I keep it clean?

CDC provides guidance on washing face coverings. OSHA suggests following those recommendations, and always washing or discarding cloth face coverings that are visibly soiled.

In general, employers should always rely on a hierarchy of controls that first includes efforts to eliminate or substitute out workplace hazards and then uses engineering controls (e.g., ventilation, wet methods), administrative controls (e.g., written procedures, modification of task duration), and safe work practices to prevent worker exposures to respiratory hazards, before relying on personal protective equipment, such as respirators. When respirators are needed, OSHA’s guidance describes enforcement discretion around use of respirators, including in situations in which it may be necessary to extend the use of or reuse certain respiratorsuse respirators beyond their manufacturer’s recommended shelf life, and/or use respirators certified under the standards of other countries or jurisdictions.

If respirators are needed but not available (including as described in the OSHA enforcement guidance noted above), and hazards cannot otherwise be adequately controlled through other elements of the hierarchy of controls (i.e., elimination, substitution, engineering controls, administrative controls, and/or safe work practices), avoid worker exposure to the hazard. Whenever a hazard presents an imminent danger, and in additional situations whenever feasible, the task should be delayed until feasible control measures are available to prevent exposures or reduce them to acceptable levels (i.e., at or below applicable OSHA permissible exposure limits).

Source: https://www.osha.gov/SLTC/covid-19/covid-19-faq.html dl 06112020

DISCLAIMER:  The contents of this newsletter are merely for informational purposes only and are not to be considered as legal advice.   Employers must consult their lawyer for legal matters and EPA/OSHA consultants for matters related to Environmental, Health & Safety. The article was authored by Sam Celly of Celly Services, Inc. who has been helping automobile dealers comply with EPA and OSHA regulations since 1987.  Sam received his BE (1984) and MS (1986) in Chemical Engineering, followed by a J.D. from Southwestern University School of Law (1997).  Our newsletters can be accessed at www.epaoshablog.com.  Your comments/questions are always welcome.  Please send them to sam@cellyservices.com.

 

 

COVID-19: Minimize Exposure to the Virus & Spread of Disease

COVID-19 is the disease caused by the highly contagious severe acute respiratory syndrome coronavirus 2 (“SARS-CoV-2”) previously called the “novel coronavirus” (World Health Organization).  The virus and COVID-19 present serious public health risks. Local and state governments in almost all states have requested the shutdown of non-essential retail services.  Many dealerships are keeping their service departments open as part of government recognized “essential service.”

The purpose of this memo is to educate dealership staff to assist in minimizing exposure to the virus and reduce the spread of the disease. We provide this guidance to you for distribution to your management and staff to take proactive steps to help minimize the exposure to the virus.  This Covid-19 viral disease is new to all of us. The information you read below may be contradicted in the coming days by advanced knowledge as scientists continue to study the virus.  We have reviewed information from government web sites to prepare this memo and recommend that you review information from websites such as www.cdc.gov daily.  This memo is not exhaustive.  Many advanced ways of protection are available for employees.  For example, a fully enclosed body suit with N95 respirator provides greater protection than the PPE currently used in a typical automobile dealership.  

Overview

COVID-19 is a highly contagious, severe acute respiratory syndrome caused by SARS-CoV-2 virusWith high degree of morbidity and fatality compared to seasonal fluSpreads easily and can spread by asymptomatic carriersLocal, State, and Federal governments have shut down non-essential servicesThe CDC recommends distancing of at least six feetThe CDC recommends that all wear cloth face coverings in public settingsView and display this ‘Stop the Spread of Germs’ poster at multiple locations on siteUse the COVID-19 screening tool built by the CDC + FEMA – available in the App StoreInform your HR Manager if you have any symptoms.  Follow guidance decisively.Stability of SARS-CoV-2:  Information from the National Institute of Health suggests that the virus is very stable and hence contagious.  The virus can live up to 3 hours in an aerosol form, 4 hours on copper surfaces, 24 hours on cardboard, and 2-3 days on plastic and stainless steel https://www.nih.gov/news-events/news-releases/new-coronavirus-stable-hours-surfaces https://www.cdc.gov/coronavirus/2019-ncov/downloads/stop-the-spread-of-germs.pdf  

Management

  • Implement a clear and simple HR policy prepared by legal counsel
  • Stagger work hours + breaks for all staff (both advisors and techs) to improve social distancing
  • Ask HR to manage employee work schedules
  • Stagger service appointments and car-pick ups
  • Consider non-contact (early bird) kiosk for service drive
  • Add a line to the repair estimate for customer approval for vehicle sanitation
  • Provide single-use pens for customers to complete paperwork
  • Shut down car wash to keep exposure minimal
  • Install plexiglass screens to protect employees at customer interface (advisor/cashier/parts counter)
  • Close the write-up area to customers or maintain at least six feet distance.  Place signs in the drive that require customers to wait for the advisor to come to the car for a write up.  This will prevent customer accumulation in the advisor area and maintain necessary distance among advisors and between advisors and customers. Do not allow test drives with customers.
  • Ensure HVAC systems operate continually during work hours and annual maintenance is documented.  Shop ventilation systems for removal of exhaust must have airflow verified per local regulations.

Organize to Ensure Social Distancing of At Least Six Feet

  • Limit access to lunchroom. Ensure display of CDC & OSHA COVID-19 posters.
  • May eat at workstations maintaining safe distance and no potential chemical exposure
  • Shut down dealer-operated shared transport
  • Post notice at entrance:

1. Do not enter if you have cough, fever or other COVID-19 symptoms
2. Maintain at least 6-feet distance from one another

3. Cough into your elbow

4. No physical contact (e.g., handshakes, hugs)

  • Monitor Entrance.  An employee must monitor entry and the common areas. 
  • Limit Entrance: Stop visitors outside when facility reaches the capacity that can support 6 foot distancing
  • Provide individually packed face covering to customers at no cost and require it be worn. In certain jurisdictions, face covering is mandatory, and it protects us all.
  • Use customer lounge/waiting area only if 6-foot distancing is available
  • Mandate single person use of elevators
  • Post sign: “We have removed food, drinks, etc. to minimize virus exposure & spread of COVID-19”

Organize to Minimize Contact Contagion

  • Remove all items that can be touched, be contaminated, and cross contaminate. e.g., coffee cups, coffee machines, toys, magazines
  • Provide hand sanitizers and ensure constant sanitizing of common areas
  • Shut down car wash to minimize employee contact with vehicles

HR Policy to address all employees including sick and vulnerable employees

To protect all employees and customers, dealers must implement an HR policy prepared by legal counsel.  A clear and easy to understand policy regarding employees with COVID-19, employees that have been exposed to others sick with COVID-19 or employees sick with non-COVID-19 illness (e.g., pneumonia, flu, fever, cough, cold) needs to be communicated to all employees immediately.  Your HR policy must address vulnerable employees, including and not limited to those with diabetes, pulmonary or heart disease, 65 or older, immune suppressed or pregnant, who are at higher risk of contracting the disease.  Policy may include requirement of medical clearance for employees treated for COVID-19.

All Employees

https://www.osha.gov/Publications/OSHA3994.pdf

Janitorial staff

Service Writers

  • Advise customers in advance of their appointments to be prepared to leave the vehicle at the dealership for service and schedule a later pickup as the waiting lounge has limited capacity with social distancing in effect 
  • If you are using a touch screen for service orders, sanitize the screen.  Use single use pens.
  • Ask customers to turn off fan and AC systems in the automobile

Technicians
Customer vehicles may be contaminated.  See the COVID-19 stability information above.

Sanitize what you are to touch, touch only what you sanitized, and at the end sanitize all you touched.

      https://www.cdc.gov/vhf/ebola/pdf/poster-how-to-remove-gloves.pdf Technicians must have proper PPE (e.g., nitrile gloves) and must avoid cross-contamination across vehicles.  Replace gloves when you finish working on each car using the CDC’s glove removal guidelines.  Use a fresh pair for every car https://www.cdc.gov/vhf/ebola/pdf/poster-how-to-remove-gloves.pdfUse covers for steering wheels, shifter and seatsDo not touch any part of your face (eyes, nose, or mouth) or body with your gloves or handsMinimize time inside the cabin. Keep windows down to promote natural air circulation.  Keep the fan inside the cabin off as the fan may circulate particles inside the vehicle.  Note: virus can be in and on the auto air circulation system.Do not use the vacuum inside the automobile as it may make infectious particles airborneChange in/out of uniform at work daily.  Perform basic hygiene functions (e.g., showering) immediately upon returning home and place clothing in wash.

 

Respirators/Masks

Respirators protect from exposure to airborne particles. In healthcare, protects from exposure to biological aerosols including viruses and bacteria. Masks are a barrier to splashes, droplets, and spit. Respirators are designed to seal tight to the face of the wearer.  Employees must understand that the mask may not protect them but may reduce the virus load shed by them, in case they are infected but asymptomatic.Use N-95 respirators when they become available for use by the public.  Commercially available respirators require the user to be directed to read the packaging on the effectiveness & limitations of the respirator and its proper usage and maintenance. See CDC/NIOSH guidance on How to Properly Put on and Take off a Disposable Respirator Take respirator training. OSHA requires all respirator wearers to undergo mandatory training, fit testing, and medical evaluation.  Some exceptions apply under certain circumstances.  https://www.osha.gov/laws-regs/regulations/standardnumber/1910/1910.134AppDSome local authorities mandate employees and members of the public wear face coverings/masks when going out to work/outside home.  Provide individually packed face covering to customers at no cost and require it be worn. https://www.cdc.gov/niosh/docs/2010-131/pdfs/2010-131.pdf?id=10.26616/NIOSHPUB2010131
 

DISCLAIMER:  Information regarding COVID-19 is dynamic and constantly evolving. Check reliable sources, such as www.cdc.gov, regularly to keep yourself updated, research other areas, and adopt procedures as they deem fit.  Even though we have used government sources to prepare this memo, we do not endorse or recommend any for a particular purpose. The information provided here is a brief guidance for employers and employees to undertake in order to protect themselves in the workplace. There is no warranty implied or expressed regarding the completeness or accuracy of information presented here.  The information provided here is not complete and/or exhaustive. Protections such as full body sealed suits and N95 respirators will further help reduce risks in the workplace and should be evaluated for use.  This memo supersedes all information disseminated earlier. 

Employers and employees should understand that the COVID-19 pandemic presents serious life-threatening health risks, and this is guidance on some ways to reduce those risks, not eliminate them.  This memo is not intended to constitute medical or safety advice or a substitute for the same.  Contact safety consultants, lawyers and medical professionals to take appropriate course of action.  

Sam Celly, author, has been assisting dealers with EPA/OSHA regulations for the last 33 years.  He received his BE (1984) & MS (1986) in Chemical Engineering followed by a JD in 1997.   

Your comments/questions are always welcome.  Please send them to sam@cellyservices.com.

Disinfectants & Sanitizers-Safety Data Sheet Availability

OSHA Hazard Communication Program:  State and federal regulations require that the all employers provide a Hazard Communication program for all employees exposed to hazardous chemicals at work.  The program must include elements as follows:

  • Employee Training
  • Written Program
  • SDS for all chemicals used at the workplace (in certain instances for chemicals sold at the workplace)- User Name & Password to access SDS on web are available to all clients
  • Labeling of all chemicals pursuant to a protocol listed by OSHA.

You can access SDS currently listed on our web portal as follows:

Visit: www.cellyservices.com

UN:

PW:

The written program and employee training are available for all clients on the CSI portal and should be completed by all employees prior to their first shift.  The labeling of all chemicals is expected to be completed by the vendor or manufacturer pursuant to state and federal guidelines.  Employers must not have any unlabeled chemical bottles. Ask vendors for labeled secondary containers such as spray bottles.

Sanitizers & Disinfectants for COVID-19:  Employers are using a variety of disinfectant and sanitizers (hereafter referred as cleaners).  The disinfectants must be listed on the EPA website as effective cleaners against the virus.  https://www.epa.gov/pesticide-registration/list-n-disinfectants-use-against-sars-cov-2.  The list is being continuously updated by the EPA.  CSI investigated some of the SDS for sanitizers being used by employers.  We have concluded that these chemicals are stronger and more toxic than the ones used in the past.  We recommend that employers take some steps as follows:

  • Provide a copy of SDS to employees followed by discussion on Personal Protective Equipment (PPE).
  • PLEASE SEND US A PDF OF ALL THE SDS FOR THE DISINFECTANTS and ALL OTHER CHEMICALS NOT OUR WEB PORTAL to elearn@cellsyervices.com so it can be uploaded to your web portal
  • Provide PPE to employees as listed on the SDS

Dilution Factors:  Disinfectants from vendors are in concentrate forms and must be diluted before use.  Dilution factors vary.  For example, the dilution factor for mold and mildew is greater than the one to be used for the COVID-19 virus.  More concentrated solution must be used in order to be effective against the COVID-19 virus.  The dilution must be completed by the shop foreman or senior technician using proper mixing tools and PPE.  PPE such as safety glass, face shield, apron and long rubber gloves are to be used in addition to the ones listed on the SDS for the disinfectant.

CA Law (Senate Bill 258) on Cleaning Products:  The cleaning products Right to Know Act of 2017 became effective on 1/1/2020.  The bill requires household, industrial, and commercial cleaning product manufacturers disclose information related to the chemicals contained in the product on the product label, the product’s Internet Web site, and provide a link to the SDS. Even though this requirement is not directed to end-users, we recommend dealerships get an SDS for each new chemical prior to its use and upload it to the web portal for easy employee access.

DISCLAIMER:  The contents of this newsletter are merely for informational purposes only and are not to be considered as legal advice.   Employers must consult their lawyer for legal matters and EPA/OSHA consultants for matters related to Environmental, Health & Safety. The article was authored by Sam Celly of Celly Services, Inc. who has been helping automobile dealers comply with EPA and OSHA regulations since 1987.  Sam received his BE (1984) and MS (1986) in Chemical Engineering, followed by a J.D. from Southwestern University School of Law (1997).  Our newsletters can be accessed at www.epaoshablog.com.  Your comments/questions are always welcome.  Please send them to sam@cellyservices.com.