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.

Coronavirus Disease (COVID-19): Do Not Mix Cleaning Supplies

The Coronavirus pandemic is creating issues with usage of supplies and materials.  Employees may accidentally mix incompatible chemicals creating health hazards to themselves and others.

The chart on the right lists the incompatible chemicals and the hazardous conditions they can produce.  Please educate your employees by reviewing this memo.

 

A general rule is not to mix bleach with anything but water.  Dealerships often do not store bleach but if someone does order, ensure you regulate the use.  Always have employees using cleaning supplies in the right PPE as listed on the SDS for the cleaning material and an eye wash nearby.  Lastly, the blending of chemical must be done by experienced senior staff.

 

Should you have any questions or concerns, please contact us at 562-716-6100.  Your local poison control center is also a good resource if you need help in an emergency.

 

Poison Control Hotline 800-222-1222 or

Visit www.poison.org

 

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 2-1-20 TO 4-30-20 LOG 300, 300A & 301 REQUIRED FOR AUTO DEALERS

Background:  Cal/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, 2020.

Forms & Guidance to Fill:  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

 

Posting Requirements:  Form 300A (Summary of Work-Related Injuries & Illnesses) for 2019 must be posted on the employee notice board from February 1, 2020 to April 30, 2020.  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

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/dte/grant_materials/fy10/sh-20856-10/Recordkeeping_Questions_w_Answers.pdf.

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 phone number is on the employee labor law poster.  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 at 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 to 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.

 

Questions Asked During Reporting:

  1. Time and date of accident/event
  1. Employer’s name, address and telephone number
  2. Name and job title of the person reporting the accident
  3. Address of accident/event site
  4. Name of person to contact at accident/event site
  5. Name and address of injured employee(s)
  6. Nature of injuries
  7. Location where injured employee(s) was/were taken for medical treatment
  8. List and identity of other law enforcement agencies present at the accident/event site
  9. 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.

This is not your Father’s EPA…This is the New Enforcement of EPA Regulations

PENALTIES FOR ILLEGAL DISPOSAL OF HAZARDOUS WASTE ARE SKYROCKETING:  Last year a chain of automobile stores were hit with penalties totaling $3.38 million dollars ( as reported in San Jose Mercury News ).  Recently, Pep Boys settled to pay $3.7 million dollars in a lawsuit alleging that the company illegally dumped hazardous waste. https://www.mercurynews.com/2019/09/30/pep-boys-to-pay-millions-in-hazardous-waste-settlement/amp/.  An auto dealership in Santa Barbara County settled with the DA’s office earlier this month for $100,000 dollars regarding hazardous waste disposal violations. http://www.santamariasun.com/news/19054/das-office-settles-with-local-auto-dealer-on-alleged-environmental-violations/ Earlier this week, Service King settled, without acknowledging any wrongdoing, for $2.35 million dollars for illegal disposal of hazardous waste from collision repair operations such as auto body sanding dust, sanding pads, automotive paints, clear coats, solvents, non-empty aerosols, etc. https://www.repairerdrivennews.com/2019/10/28/california-da-service-king-will-pay-2-35m-settlement-over-hazardous-waste-found-in-trash/. The responsibility of proper management and disposal of hazardous waste rests on the Business Owner & Operator. We have outlined some policies and procedures that management must use in order to stay clear of such enforcement. The recommendations are as follows:
MANAGEMENT ISSUES
An automotive dealer must install policies and procedures related to hazardous waste management.
Hazardous Waste Hauler:  Selection criteria should include as follows:
-Haulers that are licensed and registered with the state. Compare costs and services.
-The haulers must provide proper labeling resources and assist with the labeling of hazardous waste containers. They also maintain the schedule for when the waste is collected and ensure it is done in a timely manner, with the paperwork handled properly. Generally, hazardous waste generated by the facility should not be accumulated for more than 90 days.
-Non-California facilities with less than 100 kg/month of hazardous waste are classified as Conditionally Exempt Small Quantity Generator (CESQG). The dealers that fall in this CESQG category have no accumulation limit on hazardous waste.
Service Manager: The Service Manager and other managers must be on top of issues that arise. Establish processes as follows:
-What are the duties of the management staff regarding hazardous waste compliance?
-Who completed training on hazmat (including an annual refresher), emergency response, and where are the documents maintained?
-Facility Inspection: What person or persons will accompany the inspector on the annual walk-through? Generally, the walk-through results in Notice of Violations (NOV), which, if corrected in the established time-frame, will carry no penalties.
-Who is responsible for completing the tasks noted on violations? The penalties occur when the NOV goes unanswered. Many dealerships change managers often and new managers fail to address the pending violations in timely manner. Establish a process that requires any violations that are handed to the dealership be copied to the GM and other managers who can then monitor the correction status of violations.
-Service Manager must be held responsible for compliance activities. If the Service Managers says, “There are not enough hours in a day”, “this environmental compliance is not my duty”, or “it’s difficult to monitor what the techs are doing viz-a-viz throwing not fully empty containers into the trash”, it’s time to have a talk with your Manager.
HAZARDOUS WASTE DISPOSAL VIOLATIONS
An average dealership generates hazardous waste, such as used motor oil, used absorbent (used to absorb hazardous waste), used coolant, used parts washer fluid, non-metal used oil filters, waste thinner (from body shop), contaminated fuel etc.  Other waste, such as tires and used automotive batteries, are not classified as hazardous but they are regulated. You cannot dispose of that waste in dumpsters; instead, it must be recycled. https://www.dtsc.ca.gov/HazardousWaste/upload/HWM_FS_Generator_Requirements.pdf Violations that are being penalized by regulators are as follows:
Illegal Disposal: Disposing automotive fluids, batteries, aerosol cans, electronic devices and other regulated waste in the dumpster.
Employee Training: Employees must be trained to place hazardous waste in properly labeled containers. Unidentified waste should not be mixed with other waste. Employees should seek guidance from their manager regarding the proper storage of unidentified waste for later disposal through a licensed hauler.
SPCC Plan: Storage capacity above 1320 gallons needs a Spill Prevention Control & Countermeasures (SPCC) Plan. Secondary containment and covered tank areas minimize the accidental spill to storm sewers. Employee training on SPCC is also mandatory. Keep daily inspection log in files for 3 years.Waste –
Tank Structural Assessment (Title 22): Waste tanks need a structural assessment every 5 years from a registered Professional Engineer (PE). However, facilities generating less than 1000 kg/month are exempt from this requirement. Recently, regulators are more stringent on this code enforcement.California Environmental Reporting System (CERS): All facilities with hazmat in excess of 55 gallons or 200 cu. ft. of compressed gas must report hazmat on CERS. This reporting is similar to the federal Tier II reporting requirements. Inventory, facility maps, and the emergency contact list must be submitted and updated annually.
Spill Response: Employee training is mandatory for spill response. None of the facilities were penalized by the DA’s office for illegal disposal off the lot via a leak or a spill. If such a spill was to happen and the discharge reached the storm sewers, the DA or the EPA would demand the availability of spill response training and availability of spill kits. Spill kits must consist of snakes, absorbent pads, and bags of absorbent. Kits must be capable of mobilization in a matter of seconds.
Containers Labeling: Proper and clear labeling are equally important in guiding employees to place waste in the correct containers. Dealers must contact their hazardous waste haulers and others to provide them with labeling that is compliant for all hazardous waste and universal waste containers. Labeling may need special waste codes and accumulation start dates.
Dumpster Review & Other Miscellaneous Matters: Management must control what goes into dumpsters and trash cans to ensure that risks are minimized. Some practical tools that aid operations are listed as follows:
Eliminate Aerosol Cans & Quart Containers: Bulk purchase of brake cleaner with refillable cans will eliminate majority of aerosol cans going into the dumpster. Similarly, buying oil and ATF in bulk will eliminate quart bottles entering the dumpster. Buying in bulk also is much cheaper as you get a volume discount and eliminate retail packaging.
Oil Saver Equipment: Employees should be encouraged to drain the quart containers, when used, and placed on top of the used oil dolly to drain. Equipment to drain 5 quarts of oil simultaneously may be placed in shop bays. The techs place the quarts in the drain equipment and by the time they return after completing paperwork and returning the car to the lot, the quarts are drained, empty and then disposed into the trash can. https://www.toolplanet.com/product/Hansen-Global-Inc-69002-Oil-Saver-Bottle-Drain/oilsaverfunnel?gclid=EAIaIQobChMIpp7Zzv6m5QIVD6rsCh31Ew59EAQYAyABEgIIfPD_BwE
DISCLAIMER: The contents of this newsletter are merely for informational purposes only and are not to be considered as professional advice. Employers must consult their lawyer for legal matters and EPA/OSHA consultants for matters related to Environmental, Health & Safety. This 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.

Cal/OSHA Regulatory Update & Top Citations for 2017 and 2018

Cal/OSHA has amended regulations, effective January 1, 2020, which changes the definition of “serious injury or illness” that must be reported to Cal/OSHA within 8 hours. There are also changes to the definition for repeat violations under Cal/OSHA. The most cited regulations for 2017 & 2018 list is also public now. The new regulation, AB 1805, changes the definition of serious injury that must be reported to Cal/OSHA within 8 hours is as follows: “Serious injury or illness” means any injury or 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, or in which an employee suffers 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.
Note: Fed-OSHA definition of serious injury and the reporting period are different and not as stringent as Cal/OSHA.
Changes in effect for California employers from 1/1/20 are as follows:
8 Hour Reporting for Serious Injury: Any inpatient hospitalization for work related injury or illness, for anything other than medical observation or diagnostic testing must be reported. In the past, an employee was required to be hospitalized for 24-hours before Cal/OSHA reporting requirements were triggered.Repeat Penalty: Major changes to the Cal/OSHA repeat penalty assessment. Now, the repeat will be assessed for all violations of a similar code in the last five years. In the past, Cal/OSHA went only 3 years into the record. We believe that Cal/OSHA has decided to mirror the feds, where the repeat penalty calculation has always been 5 years. The repeat penalty is assessed to all dealerships within common ownership. If the dealership has a store in Las Vegas where they were cited for failure to have an eye wash, and now the same group with a dealership in Los Angeles is cited without an eye wash, the dealership in LA will face the repeat penalty fee – which is now $132,598!  
Type of Violation
Penalty
General
$750 per violation
Serious
$13,260 per violation
Failure to Abate
$13,260 per day beyond abatement date
Willful or Repeated
$132,598 per violation
Criminal(willful violation causes employee death)$250,000 for individual6 months prison$500,000 for corporation
Cal/OSHA Top Citations Issued in 2017 & 2018 are as follows:
No Injury and Illness Prevention Program – 2,438No Heat Illness Prevention Program – 1,196Failing to Report Serious Injuries, Illness – 808No Hazard Communication Program – 639No Air Compressor Operating Permit – 531No ANSI Approved Eye Wash Unit – 483No Safety Inspections / Failing to ID Hazards – 424Fire Extinguishers not checked monthly – 335Failing to Lockout Machine before Servicing – 334Electrical Panels Blocked – 282No First Aid Kit at work site – 267
FED-OSHA TOP 10 citations Issued for 2019 are as follows:
1. Fall Protection – 6,010 violations:  Falls, primarily from ladders and roofs, accounted for 384 fatalities in 2016. Any time a worker is at a height of 4 feet or more (30 inches or more in CA), the worker is at risk and needs to be protected.
2. Hazard Communication – 3,671 violations: Employers are required to provide a written Hazard Communication Program, label hazardous chemicals, provide a Safety Data Sheet for each chemical, and document employee training.
3. Scaffolding – 2,813 violations: Primarily applicable to the construction industry.
4. Lockout/Tagout – 2,606 violations: Specific procedures and practices safeguard employees from the unexpected energization or startup of machinery and equipment. A written program and employee training is mandatory (annually). Employees working on automobiles must comply by isolating energy to the engine to prevent inadvertent movement during repair or service. A lockout kit including locks should be available.
4. Respiratory Protection – 2,450 violations: Body shop employees need specific training on policies (written) and practices involving the use of respirators during auto refinishing operations. Training on respiratory protection, fit testing, user seal check, and respiratory cleaning procedures are mandatory, and so is the OSHA Respirator Medical Evaluation Questionnaire. When an employee wears a respirator, even when it is not required under the regulation, information on proper usage, including limitations, must still be provided.
6. Ladders – 2,345 violations: Limit ladder use to trained and experienced staff only. Secure ladders with a chain to prevent usage by untrained staff.
7. Powered Industrial Trucks (Forklifts) – 2,093 violations: The high number of fatalities associated with forklifts and high number of violations associated with powered industrial truck safety tell us that many workers are not properly trained to safely drive potentially hazardous equipment. OSHA compliance requires training in these specific activities: forklift operations, loading and unloading, and vehicle maintenance. Evaluating an operator every three years is also mandatory.8. Fall Protection Training Requirements – 1,773 violations: This moved up a notch from the 2017 number 9 spot. Dealerships must protect employees working on the parts second floor while loading or unloading parts.
9. Machine Guarding – 1,743 violations: Moving machine parts has the potential to cause severe workplace injuries, such as crushed fingers or hands, amputations, burns, or blindness. Safeguards, including anchoring machinery, are essential for protecting workers from these preventable injuries. Any machine part, function, or process that may cause injury must be safeguarded. When the operation of a machine or accidental contact with the machine may injure the operator or others in the vicinity, hazards must be eliminated or controlled. Moving parts in automobiles, grinders, and brake lathes are all subject to this regulation.
10. Eye & Face Protection – 1,411 violations: Essentially reinforce your Person protective Equipment (PPE) policy and ensure all your employee wear eye and face protection as necessary.
DISCLAIMER: The contents of this newsletter are merely for informational purposes only and are not to be considered as professional advice. Employers must consult their lawyer for legal matters and EPA/OSHA consultants for matters related to Environmental, Health & Safety. This 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.

California Wild Fire Smoke Regulations

The State of California enacted an emergency regulation earlier in 2019 to protect employees from hazards related to wildfire smoke (https://www.dir.ca.gov/DIRNews/2019/2019-66.pdf). The emergency regulation is in effect until January 28, 2020 with the possibility of two 90-day extensions. The regulation requires employers to take action when the Air Quality Index (AQI) for airborne particulate matter (PM 2.5) is 151 or greater (see Note below). Outdoor occupations such as agriculture, construction, landscaping and shops with open layouts are affected. Also, when an employee spends one hour or more outside over a course of a shift must comply with this regulation. High traffic areas, such as the showroom, where the front doors are opened frequently are also impacted.
Action Needed: At the beginning of the shift and periodically thereafter the employer must check the AQI for PM 2.5. One way to find out the PM 2.5 AQI data in real time in the outdoor space is to visit www.airnow.gov and use your zip code.  There are other government websites providing this data on the web. The action taken by the employer may consist of engineering control or administrative control. Engineering control would be placing the employees in a building with an air filtration system that reduces the PM 2.5 below 150 and administrative control would be to place them in an area that has air with PM 2.5 below 150. The regulatory burden increases significantly when the PM 2.5 exceeds 500 in the form of advanced respirator training and management (See CA Title 8 Section 5144).
Respirators: Respirators must be provided to employees when both engineering and administrative controls are not feasible. The N95 disposable particulate type respirator to be used to protect employees are available for 50 cents at your local hardware store. Safe use, maintainence and product limitations noted on the box of respirators must be reviewed. Cal/OSHA regulations https://www.dir.ca.gov/title8/5144d.html (Appendix D) has a specific memo on usage of such respirators that must be reviewed as well. 
Training: The employees must be trained on the new regulation including the health effects of wildfire smoke. Information at https://airnow.gov/index.cfm?action=smoke.index may be utilized to train employees and those at higher risk of health issues related to wildfire smoke. Training should include how employees can obtain air quality information and medical treatment, if necessary. Employers should establish a method for employees to inform them about worsening air quality and related adverse health effects.
Note: PM 2.5 refers to tiny particles or droplets in the air that are two- and one-half microns or less in width. Like inches, meters and miles, a micron is a unit of measurement for distance. There are about 25,000 microns in an inch. The widths of the larger particles in the PM 2.5 size range would be about thirty times smaller than that of a human hair.
DISCLAIMER:  The contents of this newsletter are merely for informational purposes only and are not to be considered as professional advice. Employers must consult their lawyer for legal matters and EPA/OSHA consultants for matters related to Environmental, Health & Safety. This 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.