Celly Services Inc.

OSHA IN THE NEWS: Obama Era Rules Trumped, & Other Reporting Requirements

OSHA has issued memoranda to Regional Administrators reversing course on a series of directives issued under the Obama administration. We believe these rules are employer friendly and will have an impact on how employers run their safety program and administer their drug testing policies.
OBAMA ERA RULES: In May 2016, OSHA published a rule that added new and explicit provisions for employees to report injuries with a reasonable procedure and prohibiting retaliation against employee reporting injuries at the workplace. The memo to Regional Administrators in October of 2016, explained provisions in detail as follows:

  1. Employer must have a reasonable procedure to report accidents
  2. Employer must not retaliate against employees reporting accidents
  3. Limitation on disciplining employees filing injury claims (See Our 2013 Newsletter on this issue)
  4. Limitation on drug testing following an accident
  5. Limitation on Incentive plans at work to promote safety (especially cash raffles)

RULE REVERSAL: On October 11, 2018, OSHA issued a memo (https://www.osha.gov/laws-regs/standardinterpretations/2018-10-11) clarifying their position – they do not prohibit safety incentive programs or post-accident drug testing. Their position in these current set of rules is employer friendly and employers may wish to enact policies that until now were suspect or may have been considered a violation of OSHA policies.
INCENTIVES: Incentive programs to reward workers for reporting safety hazards and near misses have always been held legal as it encourages employee involvement in safety at the workplace. Other types of incentives where employees are provided a reward or prize (earlier considered suspect) are now considered permissible so long as they do not discourage reporting accidents. Employers providing a reward to employees for accident free month or a specific time period would not be cited if they withheld the reward upon the occurrence of an injury so long as the employee feels free to report an accident. We recommend that employers run the cash/reward incentive program with instructions to employees as follows:

  • Employee must promptly report injuries/accidents so that the underlying hazard can be corrected.
  • Employee must report injuries promptly so treatment can begin and it does not fester for lack of treatment.
  • Employees not reporting injuries merely to keep the reward alive with will be disciplined so as to prevent such occurrence in future.

OSHA recommends that inadvertent deterrent effects from cash rewards can be counterbalanced by also implementing rewards for reporting unsafe acts or conditions, introducing training programs that reinforce employee rights to treatment from workplace accidents, and reminding employees that the employer has a non-retaliatory policy.

DRUG TESTING GUIDANCE FROM OSHA: The new rules on post-accident drug testing are very clear and allow the managers to conduct drug testing following an accident. Permissible drug testing includes:

  • Random Drug testing
  • Drug testing unrelated to the reporting of work related injury or illness
  • Drug testing under the states’ workers’ compensation law
  • Drug testing under other federal laws such as US DOT rules
  • Drug testing to evaluate the root cause of the workplace incident that harmed or should have harmed the employees. If the employer chooses drug testing to investigate the accident, the employer should test all employees whose conduct could have contributed to the accident, not just employees who reported the injuries.

Last but not least, the October 2018 OSHA memo noted that it supersedes the memo issued covering the interpretation of various elements of the labor code as issued during Obama Administration in October 2016.
EMPLOYER DRUG TESTING POLICY: Many states have legalized marijuana for medicinal and recreational drug. On a federal level marijuana remains a Schedule I drug and therefore employers may still enforce legitimate drug testing and discipline employees for violating the employers’ drug policy. Recently, the US Department of Justice and Drug Enforcement Administration placed the FDA approved medication Epidiolex in Schedule V of the Controlled Substance Act, the least restrictive schedule of CSA. Epidiolex is the first cannabis plant extract based drug that has been approved by a federal agency for lawful medical use.
This approval by DOJ may be a step towards reclassifying marijuana at a later time. With changes in the legal and social acceptance of marijuana, employers must update their drug use policies with the help of legal counsel to keep them compliant. Also, such policies should be communicated to employees through discussion forums at the workplace rather than just a page in the employee handbook. Employers maintaining drug free workplace have consistently shown better safety records than those who have lax drug enforcement policy.

RECORDING & REPORTING OF INJURIES TO OSHA

Employers in states regulated by federal OSHA have been required to electronically submit certain records of occupational injuries and illnesses. The electronic submission requirements, along with the incorporation of an existing statutory prohibition on retaliating against employees for reporting work-related injuries or illnesses, were added to federal OSHA’s recording and reporting regulations found in the Code of Federal Regulations, Title 29, Part 1904.

On April 30, 2018, federal OSHA posted a “trade release” requiring all affected employers to submit injury and illness data to the federal OSHA Injury Tracking Application (ITA) online portal, even if the employer was covered by a state plan that had not completed adoption of their own state rule: https://www.osha.gov/news/newsreleases/trade/04302018. Therefore, though California had not yet adopted its own state rule, Cal/OSHA advised affected employers to comply with federal OSHA’s directive to provide Form 300A data covering calendar year 2017 by July 1, 2018.

On July 27, 2018, federal OSHA posted a “trade release” that it proposes to amend its recordkeeping regulation by rescinding the requirement for establishments with 250 or more employees to electronically submit information from OSHA Forms 300 (Log of Work-Related Injuries and Illnesses) and 301 (Injury and Illness Incident Report). These establishments will continue to be required to submit information from their Form 300A (Summary of Work-Related Injuries and Illnesses) covering the previous calendar year. For additional information and links, go to federal OSHA’s trade release: https://www.osha.gov/news/newsreleases/trade/07272018.

Employers are now required to electronically submit Form 300A data covering calendar year 2017 by December 31, 2018. These employers should follow the instructions posted at federal OSHA’s ITA website:

All employers with 250 or more employees, unless specifically exempted by section 14300.2 of title 8 of the California Code of Regulations. Auto dealers with more than 250 employees are not exempt from these regulations and must conform to reporting.

Employers with 20 to 249 employees in the specific industries listed in Appendix H of the emergency regulations (https://www.dir.ca.gov/dosh/doshreg/Recording-and-Reporting/Text-of-Amended-Regulation-Revised.pdf). Auto dealers are not covered in the reporting requirements and hence auto dealers with 20-249 employees are exempt from electronic submission requirements.

NOTE: We note that some specific government agencies on a data gathering mission may contact the dealership for injury data. Dealers may then comply with such request on a case by case basis.

APPEALS COURT LIMITS OSHA’s INSPECTION AUTHORITY

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 provide OSHA 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. See our Newsletter on “How to handle an OSHA Inspection”.
In the case at hand, an employee was injured while repairing an electrical panel. 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 courts 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, or 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 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. And if OSHA wishes 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.
References:

  1. https://www.osha.gov/recordkeeping/finalrule/interp_recordkeeping_101816.html
  2. https://www.dir.ca.gov/dosh/calosha-updates/log300-reporting.html
  3. USA v. Mar-Jac Poultry, Inc., No. 16-17745 (11th Cir. 2018)

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

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Posting of Prop 65 Signs at Auto Dealerships (CA Only)

California’s Proposition 65, also called the Safe Drinking Water and Toxic Enforcement Act, was enacted in 1986. It is intended to help Californians make informed decisions about protecting themselves from chemicals known to cause cancer, birth defects, or other reproductive harm. The law had certain nuances not normally seen in toxic chemical regulations. The specific ones that catch our attention are as follows:
  • No Harm Requirement: Most of the regulations require that an actual harm be done before damages be awarded. In this case, the absence of mere warning was sufficient cause for dealers to cough up big money. A penalty of $2500 per day!
  • Standing: In order to litigate, a plaintiff must allege some connection to and actual or potential harm. Under this unique law, without harm but the mere absence of notice was sufficient cause for payment to plaintiff lawyers.
  • Bounty Hunter Clause: Proposition 65 is enforced entirely through litigation. While California’s AG is vested with principal enforcement, Proposition 65 also allows any individual or organization “acting in public interest” to sue for violations. The individuals or organizations can potentially collect attorney fees and 25% of any penalties assessed. Reportedly, 20,000 businesses have paid more than $600 million in penalties since 1987. This makes the case to use your $200 sign kit even stronger!

What Chemicals Need Warning?

This list currently includes more than 850 chemicals. Proposition 65 does not ban or restrict the sale of chemicals on the list. The warnings are intended to help Californians make informed decisions about their exposures to these chemicals in the products they use and the places they go.

What Signs Do I Need & Where Do I Order?

In general, an average automobile dealership may need 8 signs for various locations. A copy of these signs is attached with guidance for posting. Signs may be ordered through your vendor or through your Reynolds & Reynolds representative. Consumer product warning signs must be obtained from the product manufacturer.

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

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

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

What Are Other Highlights of the New Warnings System?

The new warning regulation also:

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

Why are Proposition 65 Warnings Changing?

In 2013, Gov. Edmund G. Brown Jr. proposed reforms to strengthen Proposition 65. The Governor called for changes to “require more useful information to the public on what they are being exposed to and how they can protect themselves.” He added, “This is an effort to improve the law so it can do what it was intended to do – protect Californians from harmful chemicals.”

In 2015, UC Davis researchers interviewed more than 1,500 randomly selected Californians and asked them to compare the new specific warnings to the current generic warnings. The results were dramatic – 77 percent said the new warnings would be more helpful than the current system.

When Will the Changes Take Effect?

In August 2016, the Office of Administrative Law approved the new regulations for improved Proposition 65 warnings. Businesses can currently choose whether to provide the old warning or the new warning as part of the regulation’s two-year phase-in period. Beginning August 30, 2018, the old warning system will expire and businesses that want “safe harbor protection” that deems them in compliance with Proposition 65 will use the
new warning system.

What is the Purpose of the New Proposition 65 Warnings Website?

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

Will Businesses Be Required to Provide the New Warnings?

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

Businesses have the option to provide different warnings if they believe they comply with the law. Additionally, small businesses with fewer than 10 employees are exempt from Proposition 65’s warning requirements.

Will Products Manufactured Before August 2018 Need to Use the New Warnings?

Products manufactured before August 30, 2018 will not need new warnings if they meet the requirements that were in effect at the time of their production.

What Circumstances Will Require Warnings in Languages Other Than English?

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

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

Which Exposures, Products, and Places Have Specific Tailored Warnings?

In addition to the warnings for chemical exposures from consumer products, the new regulation provides specific warnings for exposures from:

  • Alcoholic beverages, food and non-alcoholic beverages, prescription drugs, dental care, wood dust, furniture products, diesel engines, vehicles, and recreational vessels
  • Enclosed parking facilities, amusement parks, petroleum products, service stations and vehicle repair facilities, and designated smoking areas

What Are the Warning Responsibilities for Manufacturers and Retailers?

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

Retailers must confirm that they received the notice and must use the warning signs or other materials provided by the manufacturer.

Are There Other Regulations to Assist Businesses with Warning Requirements?

In addition to other forms of compliance assistance, OEHHA has regulations that set procedures for requesting advice from the agency including Interpretive Guidelines and Safe Use Determinations.

There is also a procedure for requesting a Safe Use Determination. A Safe Use Determination is a written statement issued by OEHHA that interprets whether specific sets of exposures require warnings. For example, in recent years, OEHHA has issued several Safe Use Determinations related to exposures from diisononyl phthalate (DINP) in vinyl flooring and outdoor furniture products.

Josh Gohlke in the SF Chronicle on May 5, 2018 says “It’s a paradox of life in a place whose supposed tolerance is belied by petty, pointless intrusions of the nanny state – where a person might negotiate clouds of guilt free marijuana smoke only to be scolded for needing a cup of coffee”.

SOURCES: www.P65Warnings.ca.gov & https://oehha.ca.gov/

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.

Transformation of the Haz Waste Manifest – From the Stone Age to the Modern Age

Background: Historically and well into the 60’s and 70’s some of the hazardous wastes were being dumped illegally and contaminating the environment. Cleanup of illegal dump sites such as Stringfellow and Love Canal were costing the taxpayers millions of dollars. Congress took action and enacted the Resource Conservation and Recovery Act (RCRA) of 1976 that created a “cradle-to-grave” liability for waste generators as related to disposal of these wastes. In summary, the generator is ultimately liable for the disposal of hazardous wastes from the time it was generated until the time it is finally disposed/recycled. Liability for cleanup of the environment damaged by illegal disposal may flow to the generator. The US EPA created a Hazardous Waste Manifest System (Manifest) to track the shipment hazardous waste from the generator to the off-site Treatment, Storage or Disposal Facility (TSDF). The tracking system is time and paper intensive. The new system is expected to be paperless and a time saver.
The Manifest: Under the 6 page manifest system currently in effect, the hauler brings the manifest duly completed to the generator. The Generator must verify all information on the manifest as any inaccuracy on the manifest brings liability to the generator. We note that the federal manifest and CA manifest are the same but California has more wastes that have to be manifested. California also has more taxes on the hazardous wastes generated including some complicated reporting requirements for large generators (over 12 tons/year). The good news is that only some of the waste dealers produce needs a manifest.
The Manifest Process (Now): The person designated by the generator signs the manifest acknowledging the nature and amount of waste being hauled away. The driver for the waste hauler leaves a copy (Copy 1) with the generator. The Generator then mails a photocopy of Copy 1 to Cal/EPA in Sacramento (Generator Manifests, PO Box 400, Sacramento CA, 95812). Within 45 days, the generator will receive a second copy (Copy 2) of the manifest from the TSDF with signature at the bottom acknowledging reciept of the waste. Copy 2 must be matched with Copy 1 and maintained in files for a period of 3 years. In the event Copy 2 is not received, the hauler/TSDF must be contacted. Copy 3 is mailed to the EPA by TSDF, Copy 4 is kept by the TSDF and Copy 5 is kept by the hauler. Copy 6 is for the 2nd hauler, if any.
Federal manifest procedures are listed here.
Paperless Process: The EPA established the e-Manifest system according to the Hazardous Waste Electronic Manifest Establishment Act, enacted into law on October 5, 2012. The “e-Manifest Act” authorizes the EPA to implement a national electronic manifest system and requires that the costs of developing and operating the new e-Manifest system be recovered from user fees charged to those who use hazardous waste manifests to track off- site shipments of their wastes. In January 2018, the EPA published its final methodology for setting user fees based on the costs of processing manifests. By enabling the transition from a paper-intensive process to an electronic system, the EPA estimates e-Manifest will ultimately reduce the burden associated with preparing shipping manifests by between 300,000 and 700,000 hours, saving state and industry users $75-$90M annually.
 June 30, 2018: Now 6 years later, the e-Manifest Act is taking effect, which makes two changes to the current manifest system. The first change is that waste generators will be allowed to submit hazardous waste manifests electronically through the EPA’s e-Manifest system. Generators looking to use the e-Manifest system must register online here. The registration process requires confidential information and must be completed by at least two dealership managers. We have provided a step-by-step guide for e-Manifest registration hereThe second change happening to the manifest system is that the EPA will charge the TSDF a fee for every manifest produced. TSDF’s are expected to share this expense with generators.
The EPA’s goal is to phase out the paper manifest system and replace it with the e-Manifest within the next 5 years. Since this law is in its early rollout phase there are going to be updates and changes as the EPA, generators, waste haulers, and TSDF’s adapt to the new system. Below we have outlined the different ways dealerships can currently submit manifests:
OPTIONS AVAILABLE NOW:
1.     Mailed Paper Manifest: The generator, waste hauler and receiving facility all sign on paper. If the dealership is NOT registered for e-Manifest, follow the old paper manifest procedures outlined under The Manifest Process on the previous page. Generators using this option do not need to register on the EPA website. Fee is $20/manifest.
2.     Registered for the E-manifest: As explained on the previous page, if the facility is registered for the e-manifest system, then the paper copy of the manifest can be submitted electronically as a PDF scan or image upload. Fees are less than that for option 1 above.
NOTE: Currently, the EPA has not made changes to the record keeping requirements. Paper copies of all manifests must be retained on site. Paper copy of the signed manifest from the waste hauler received at the time of pickup must be paired with a copy of the signed manifest from the disposal facility. Use the Black Box.
OPTION IN THE FUTURE (THE MODERN AGE):
Paperless Option: The dealership must be registered on the e-Manifest website. The generator, waste hauler and TSDF will all sign electronically. The hauler(s) have to develop software that can communicate with the state and federal agencies. We are told this can take up to 5 years. Haulers are expected to keep generators informed as the paperless system becomes available.
CA EPA ID Numbers: The federal EPA populated the e-Manifest system with CAD or federal EPA ID numbers, however, they did not account for the 90,000 CAL numbers issued by Cal/EPA. Reportedly, these numbers are being loaded into the system. California dealers may have to wait to get this system working full tilt.

References: https://www.epa.gov/e-manifest & https://www.epa.gov/sites

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 atwww.epaoshablog.com. Your comments/questions are always welcome. Please send them tosam@cellyservices.com.

You Must Discipline Employees For Unsafe Acts July 2018

An employee is seriously injured on the job and the employer calls OSHA as part of notification requirements. OSHA investigates and slaps a $12,000 fine against the employer. This happened to an automobile dealer in Los Angeles. The employee had partially amputated a finger while diagnosing the engine on an automobile. In their defense, the employer pled that the act that caused the injury was an independent act of the employee and the employer should not be held liable.

In order to prevail on this affirmative defense, which must be pled on the appeal following the citation, an employer in California must prove all five elements as follows:

1. The Employee was Experienced and Trained on the Job Being Performed: In the case at hand, the employee was a diagnostic specialist on automobiles and the employer presented 79 training certifications from the automobile manufacturer out of which 30 were on engine diagnostic and performance checks. Training certification from a nationally recognized body was also presented. OSHA accepted the employer’s claim on this issue. Interestingly, OSHA looked at all the safety training completed by the technician. CSI recommends that you to save all your safety and other work related training in files on site.

2. Employer Has A Well Devised Safety Program: Employer must prove that a well-devised safety program, which includes employee training for their particular job assignment, is in effect. The employer presents its IIPP Program and training from the service manual from the automobile manufacturer relevant to the service operations being done when the injury occurred. OSHA accepted this element of the defense as well. The requirements of IIPP program are as follows:

·     Identify the person or persons with authority and responsibility for implementing the Program.

·     Include a system for ensuring that employees comply with safe and healthy work practices. Substantial compliance with this provision includes recognition of employees who follow safe and healthful work practices, training and retraining programs, disciplinary actions, or any other such means that ensures employee compliance with safe and healthful work practices.

·     Include a system for communicating with employees in a form readily understandable by all affected employees on matters relating to occupational safety and health, including provisions designed to encourage employees to inform the employer of hazards at the worksite without fear of reprisal. Substantial compliance with this provision includes meetings, training programs, posting, written communications, a system of anonymous notification by employees about hazards, labor/management safety and health committees, or any other means that ensures communication with employees.

·     Include procedures for identifying and evaluating work place hazards including scheduled periodic inspections to identify unsafe conditions and work practices. Inspections shall be made to identify and evaluate hazards:

·     When the Program is first established;

·     Whenever new substances, processes, procedures, or equipment are introduced to the workplace that represent a new occupational safety and health hazard; and

·     Whenever the employer is made aware of a new or previously unrecognized hazard.

·     Include a procedure to investigate occupational injury or occupational illness.

·     Include methods and/or procedures for correcting unsafe or unhealthy conditions, work practices and work procedures in a timely manner based on the severity of the hazard:

·     When observed or discovered; and,

·     When an imminent hazard exists which cannot be immediately abated without endangering employee(s) and/or property, remove all exposed personnel from the area except those necessary to correct the existing condition. Employees necessary to correct the hazardous condition shall be provided the necessary safeguards.

·     Provide relevant training and instruction

·     When the program is first established;

·     To all new employees;

·     To all employees given new job assignments for which training has not previously been received;

·     Whenever new substances, processes, procedures or equipment are introduced to the workplace and represent a new hazard;

·     Whenever the employer is made aware of a new or previously unrecognized hazard; and,

·     For supervisors to familiarize themselves with the safety and health hazards to which employees under their immediate direction and control may be exposed.

·     Records of the steps taken to implement and maintain the Program shall include:

·     Records of scheduled and periodic inspections required by subsection above to identify unsafe conditions and work practices, including person(s) conducting the inspection, the unsafe conditions and work practices that have been identified and action taken to correct the identified unsafe conditions and work practices. These records shall be maintained for at least one (1) year; and

·     Documentation of safety and health training required as above should be maintained for each employee, including employee name or other identifier, training dates, type(s) of training, and training providers. This documentation shall be maintained for at least one (1) year. CSI recommends that you keep safety training documents well past the date of employment. Contact employment counsel on employee training retention period.

3. Policy of Sanctions Against Employees Violating Safety Program: The employer must have a policy of sanctions against employees violating safety rules or involved in unsafe acts. The employer stated that one had never been required or deemed necessary as the injuries were virtually non-existent. The employer lost on this element as no earlier enforcement/disciplinary action had been documented.

4. Employer Effectively Enforces the Safety Program: The written disciplinary policy should be implemented. OSHA held that the enforcement element of the safety program had “no teeth” and that the safety program had not been enforced.

5. Employee Caused the Safety Infraction Which He or She Knew was Contra to Employer’s Safety Requirement: The employer must prove that the employee had knowledge of this safety requirement, violation of which caused the injury. The employees pled that the safety rules, acknowledged and signed by the employee were available. Also, the shop manual (to service automobiles), which technicians reference repeatedly had outlined the safety procedures including relevant safety issues.

In summary, the employer lost for not having a policy enforcing sanctions against employees violating the safety program. Written policy without implementation is not sufficient either. A written IIPP where the facility is inspected on a periodic basis and hazards corrected is not enough. A “Write-Up Policy” is needed. Further, such policies should be enforced consistently without discrimination. A safety disciplinary form is available in the Black Box. Disciplining employees is also a labor law issue and the employer should seek advice of qualified counsel. (Ref.: Mercury Service, Inc. Docket No, 77-R4D1-1133)

DISCLAIMERThe 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.

What’s In Your Dumpster? Make Sure It’s NOT Hazardous or Universal Waste, March 2018

ENFORCEMENT OF HAZARDOUS WASTE DISPOSAL REGULATIONS:  Reportedly, local inspectors (Environmental Compliance Officers) have gone into dumpsters at auto service facilities to determine the occurrence of illegal waste disposal. They have cited heavy fines for violations when hazardous waste and universal waste are found in the dumpster.  Alameda and Santa Clara counties sued an auto dealership chain and recently obtained a settlement of $3.38 million. See link.

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Top 10 OSHA Citations of 2017, December 2017

The Department of Labor’s Occupational Safety and Health Administration has released a list of the 10 most frequently cited safety and health violations for the fiscal year of 2017; compiled from thousands of inspections of workplaces by federal OSHA staff. One remarkable thing about the list is that it rarely changes. Year after year, thousands of the same on-the-job hazards are cited, any one of which could result in a fatality or severe injury.

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California Requires Auto Dealers to Keep Log 300 Similar to Federal Requirements, December 2017

LOG 300, 300A & 301 REQUIRED FOR AUTO DEALERS

Background:  Cal/OSHA and Fed-OSHA now requires auto dealers and other employers to keep a record of occupational injuries and illnesses using OSHA Log 300 and post summary on employee notice board from February 1 to April 30, 2018.

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