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

 

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.

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.