YOU MUST DISCIPLINE EMPLOYEES FOR UNSAFE ACTS

In this Newsletter, we discuss as follows:
·   OSHA Citations and Penalties following a Serious Injury
·   Defense:  Independent Employee Act Defense (elements of) available to employer to seek relief from citation and penalties (1980 case).
·   Elements of California Illness & Injury Prevention (IIPP) Program www.dir.ca.gov/title8/3203.html
·   Changes to CA IIPP regulation (Section 3203 (a)(8)(A-F))

BACKGROUND:  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 of the employee that had caused the injury was an independent act of the employee and hence the employer should not be held liable.  (Ref.: Mercury Service, Inc. Docket No, 77-R4D1-1133).    

We must note that this case is not new but decades old.  We bring this to your attention because many employers do not have an enforcement policy for employees violating safety rules or policies.  Furthermore, many of these violations by employees go undocumented.  Enforcement and documentation may not only improve your safety record but also defend you, should a serious injury occur on your premises.

In order to prevail on this affirmative defense, which must be pled on the appeal to the California Occupational Safety & Health Appeals Board (https://www.dir.ca.gov/oshab/oshab.html) following the citation, an employer in California must prove and prevail on 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 employers’ claim on this issue.  Interestingly, OSHA looked at all the safety training completed by the technician.  CSI’s advice is to keep your monthly safety training handy.
  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 presented 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.

Changes to the IIPP program in 2020 require that each employee have access to the IIPP.  We amended the IIPP and posted it on the CSI employee training portal.  A memo regarding the availability and location of the IIPP may be posted on the Employee Notice Board.  Elements of the IIPP are as follows:

  • Responsibility
  • Compliance
  • Communication
  • Hazard Assessment
  • Accident/Exposure Investigation
  • Hazard Correction
  • Training and Instruction
  • Recordkeeping
  • 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 as the injuries were virtually non-existent and one was never deemed necessary.  The employer lost on this element as no earlier enforcement/disciplinary action had been documented.
  • Employer Effectively Enforces the Safety Program:  The written disciplinary policy should be implemented.  An occasional write-up of an employee violating safety rules helps satisfy this element.  Examples include employees not wearing safety glasses when working on an automobile or not wearing a seat belt when operating a forklift.  In the case at hand, OSHA held that the enforcement element of the safety program had “no teeth” and that the safety program had not been enforced.  Employer lost this argument and the citation stood.
  • 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.  An example is that the employee knows the temperature and pressure inside a container.  A gauge showing temperature and pressure inside a vessel indicates to the employee the existing temperature and pressure and hence the employee is deemed to have knowledge.  The employer 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.  Furthermore, such policies should be enforced consistently without discrimination.  A safety counseling form is available in the Black Box.  Disciplining employees is also a labor law issue and the advice of qualified counsel should be obtained.


OTHER STATES:  The case law cited above is California specific and does not carry weight in federal jurisdiction or other states.  The employers in other states may ask the tribunal to consider the Mercury case cited above as a persuasive matter.  

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

California Wild Fire Smoke Regulations

The State of California enacted regulations in 2020 to protect employees from hazards related to wildfire smoke. The regulation (https://www.dir.ca.gov/title8/5141_1.html) requires employers to act 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, an employee who 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. For wildfire smoke, use the AQI for PM2.5, which is measurement of fine particles in the air. An AQI over 150 is considered unhealthy for the general population. AQI over 101 can be unhealthy for sensitive groups and some workers with asthma and other conditions may feel unhealthy when the AQI is below 150. https://www.dir.ca.gov/dosh/wildfire/wildfire-faq.html                                                               

Exemptions to this regulation:

  • Employer, through measurement, demonstrates that employees working inside a building has a PM2.5 that does not exceed a concentration of AQI of 151.
  • Employees that are exposed to current AQI for PM2.5 of 151 or greater for total of one hour or less during a shift.

Action Needed: At the beginning of the shift and periodically thereafter the employer must check the AQI for PM2.5.  Look for AQI data in real time at www.airnow.gov and use your zip code.  Smart phones under the Weather app also provide the AQI data.  If employees are exposed to wildfire smoke, then the employer is required to find out the current AQI applicable to the worksite. If the current AQI for PM2.5 is 151 or more, the employer is required to:

  • Check the current AQI before and periodically during each shift.
  • Provide training to employees.
  • Lower employee exposures.
  • Provide respirators and encourage their use.

The action taken by the employer may consist of engineering control and/or administrative controls.  An example of an engineering control would be placing the employees in a building with an air filtration system that reduces the PM 2.5 below 150.  Cal/OSHA standard Title 8 CCR Section 5141.1 lists the enforcement based on the AQI as follows:

  • AQI at or below 150: Generally normal.  Wildfire smoke regulation does not apply.
  • AQI of 151-500: N95 respirator use is voluntary. Employees with certain health conditions need to follow medical guidance
  • AQI exceeds 500: Employees must use N95 respirator with training and management.

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 is available for about $1/mask through various distributors.  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.  USE ATTACHED MEMO.  Information at www.airnow.gov 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 to inform employees about worsening air quality and related adverse health effects.  The public address system at dealership should suffice.

Note: PM2.5 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 PM2.5 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 legal advice.   Employers must consult their lawyer for legal matters and EPA/OSHA consultants for matters related to Environmental, Health & Safety. The article was authored by Sam Celly of Celly Services, Inc. who has been helping automobile dealers in Arizona, California, Hawaii, Idaho, Nevada, New Mexico, New York, Texas, and Virginia comply with EPA and OSHA regulations for over 34 years.  Sam is Certified Safety Professional (No. 16515) certified by National Board of Certified Safety Professionals. Sam received his BE (1984) and MS (1986) in Chemical Engineering, followed by a J.D. from Southwestern University School of Law (1997).  Our newsletters can be accessed at www.epaoshablog.com.  Your comments/questions are always welcome.  Please send them to sam@cellyservices.com.

CDC & California Mask Requirements Update as of July 29

CDC Guidance: Safer Activities for You and Your Family

  • If you are fully vaccinated, you can participate in many of the activities that you did before the pandemic.
  • To maximize protection from the Delta variant and prevent possibly spreading it to others, wear a mask indoors in public if you are in an area of substantial or high transmission. LA county and certain other CA counties are considered to be in high risk of transmission.
  • Wearing a mask is most important if you have a weakened immune system or if, because of your age or an underlying medical condition, you are at increased risk for severe disease, or if someone in your household has a weakened immune system, is at increased risk for severe disease, or is unvaccinated. If this applies to you or your household, you might choose to wear a mask regardless of the level of transmission in your area.

You should continue to wear a mask where required by laws, rules, regulations, or local guidance

July 29, 2021 STATE OF CA: Face masks are required for unvaccinated in indoor settings such as an auto dealership.

July 27, 2021 LA COUNTY and Other jurisdictions:  In certain jurisdictions, including LA County and Sacramento, masks are required to be worn by all persons (visitors and employees) in indoor settings regardless of vaccination status.

Note: This guidance is effective July 28, 2021 and supersedes all prior face coverings guidance.

BACKGROUND: The COVID-19 vaccines are effective in preventing serious disease. Unvaccinated persons are more likely to get infected and spread the virus which is transmitted through the air and concentrates indoors. About 15% of our population remains without the option for vaccination (children under 12 years old are not yet eligible) and risk for COVID-19 exposure and infection will remain until we reach full community immunity.

The purpose of this guidance is to provide information about higher risk settings where masks are required or recommended to prevent transmission to persons with higher risk of infection (e.g., unvaccinated or immunocompromised persons), to persons with prolonged, cumulative exposures (e.g., workers), or to persons whose vaccination status is unknown. When people who are not fully vaccinated wear a mask correctly, they protect others as well as themselves. Consistent and correct mask use by people who are not fully vaccinated is especially important indoors.

With the emergence of the more contagious Delta variant in California which now accounts for over 80% of cases sequenced, cases and hospitalizations of COVID-19 are rising throughout the state, especially amongst those that remain unvaccinated. 

Despite ongoing outreach and improving COVID-19 vaccine access, as of July 27, 2021, a significant proportion of Californians throughout the state are not yet fully vaccinated. The Delta variant is two times as contagious than early COVID-19 variants, leading to increasing infections.

In California, unvaccinated persons continue to be required to wear masks in all indoor public settings. This guidance is an update, in light of review of the most recent CDC recommendations. To achieve universal masking in indoor public settings, we are recommending that fully vaccinated people also mask in indoor public settings across California. This adds an extra precautionary measure for all to reduce the transmission of COVID-19, especially in communities currently seeing the highest transmission rates. Local health jurisdictions may be more restrictive than this guidance.

In California, fully vaccinated people might choose to wear a mask in indoor non-public settings, particularly if they are immunocompromised or at increased risk for severe disease from COVID-19, or if they have someone in their household who is immunocompromised, at increased risk of severe disease, not fully vaccinated, or not yet eligible for vaccination. In workplaces, employers are subject to the Cal/OSHA COVID-19 Emergency Temporary Standards (ETS) or in some workplaces the Cal/OSHA Aerosol Transmissible Diseases (ATD) Standard and should consult those regulations for additional applicable requirements.

EXEMPTIONS TO MASK REQUIREMENTS: The following individuals are exempt from wearing masks at all times:

  • Persons younger than two years old. Very young children must not wear a mask because of the risk of suffocation.
  • Persons with a medical condition, mental health condition, or disability that prevents wearing a mask. This includes persons with a medical condition for whom wearing a mask could obstruct breathing or who are unconscious, incapacitated, or otherwise unable to remove a mask without assistance.
  • Persons who are hearing impaired, or communicating with a person who is hearing impaired, where the ability to see the mouth is essential for communication.
  • Persons for whom wearing a mask would create a risk to the person related to their work, as determined by local, state, or federal regulators or workplace safety guidelines.

LA COUNTY UPDATE: http://publichealth.lacounty.gov/media/Coronavirus/docs/HOO/HOO_SaferReturnWorkCommunity.pdf

SACRAMENTO COUNTY UPDATE: https://www.saccounty.net/news/Documents/Sacramento%20County%20Order%20of%20the%20Health%20Officer%20-%2007-29-2021.pdf

YOLO COUNTY UPDATE: https://www.yolocounty.org/home/showpublisheddocument/70193/637630003192700000

CDC Guidance on masking effective July 27, 2021: https://www.cdc.gov/coronavirus/2019-ncov/vaccines/fully-vaccinated.html

Disclaimer: The contents of this newsletter are merely for informational purposes only and are not to be considered as professional advice. Information from CDC, Fed-OSHA and Cal/OSHA 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.

Of CDC, OSHA, & Cal/OSHA Matters – Fully Vaccinated People Can Now Gather Indoors Without a Mask (With Limitations)

Newsletter Highlights:

  1. CDC Changes Effective May 13, 2021
  2. Vaccine Mandates in the Workplace
  3. CAL/OSHA Changes Effective June 17, 2021
  4. Respirator Obligations for Employers
  5. Vaccine Documentation (CA)

CDC CHANGES: The CDC has announced an update regarding fully vaccinated people. If you have been fully vaccinated, you can gather indoors with other fully vaccinated people without a mask. You can also gather indoors with unvaccinated people from one other household without masks UNLESS any of those people or anyone they live with are at higher risk for severe illness from COVID-19. If you are vaccinated and exposed to someone with COVID-19, you do not need to quarantine or get tested unless you have symptoms.

Who is Considered Fully Vaccinated: According to the CDC, people are considered fully vaccinated: 2 weeks after their second dose in a 2-dose series or2 weeks after a single-dose vaccine

The CDC says that, for now, if you’ve been fully vaccinated:

  • You will still need to follow guidance at your workplace and local businesses.
  • If you travel, you should still take steps to protect yourself and others.
  • Masks are required on planes, buses, trains, and other forms of public transportation traveling into, within, or out of the United States and in U.S. transportation hubs such as airports and stations. CDC recommends that travelers who are not fully vaccinated continue to wear a mask and maintain physical distance when traveling.
  • You should still watch out for symptoms of COVID-19, especially if you’ve been around someone who is sick. If you have symptoms of COVID-19, you should get tested and stay home and away from others.
  • People who have a condition or are taking medications that weaken the immune system, should talk to their healthcare provider to discuss their activities. They may need to keep taking all precautions to prevent COVID-19.

COVID-19 vaccines are effective at preventing COVID-19 disease, especially severe illness and death. COVID-19 vaccines reduce the risk of people spreading COVID-19.

What We’re Still Learning

  • How effective the vaccines are against variants of the virus that causes COVID-19. Early data show the vaccines may work against some variants but could be less effective against others.
  • How well the vaccines protect people with weakened immune systems, including people who take immunosuppressive medications.
  • How long COVID-19 vaccines can protect people.

VACCINE MANDATES IN THE WORKPLACE

Employers are likely to mandate vaccines at the workplace as soon as the Pfizer and Moderna vaccines obtain full regulatory approval.  Full licensing approval is likely to come by this fall or winter. The showdowns between employee and employer largely occur along the lines that the vaccines have not been approved.  Concerns around vaccine efficacy will be diminished upon FDA approval.  Employers will still have to provide accommodations to employees under the ADA guidelines. EEOC has stated that employers must make accommodations for employees who decline vaccine for health conditions or religious beliefs.  Even though the litigious elements of the vaccination will wane, legal input on your vaccination policy is a must.  Union workforces will require a collaborative process as well.

Storing vaccine records may be another challenge to employers. EEOC, which enforces civil rights laws, states that employee vaccination status must be kept confidential under the ADA confidentiality requirements.  The vaccination records therefore must be kept separate from personnel files.  Personal record breaches can trigger confidentiality claims that can cost thousands of dollars. State requirements for the time period that employee records are retained must be followed as well.  California mandates vaccination status be documented. See CA specific guidance below.

Fed-OSHA has noted that adverse reaction to vaccines under employer mandate is not considered a workplace injury or illness. https://www.osha.gov/coronavirus/faqs#vaccine

CAL/OSHA WHAT CHANGED:

  • Fully vaccinated employees without symptoms do not need to be tested or quarantined after close contact with COVID-19 cases unless they have symptoms.
  • Unvaccinated persons are required to wear face coverings and physically distance indoors.
  • No face coverings are requiring outdoors (except during outbreaks), regardless of vaccination status, though workers must be trained on CDPH recommendations for outdoor use of face coverings.
  • Employers may allow fully vaccinated employees not to wear face coverings indoors, but they must document employee vaccination status. There are some settings where CDPH requires face coverings regardless of vaccination status. During outbreaks, regardless of vaccination status, all employees must wear face coverings indoors and outdoors when six-feet physical distancing cannot be maintained.
  • Upon request, employers must provide unvaccinated employees with approved respirators for voluntary use when working indoors or in a vehicle with others.
  • Employers may not retaliate against employees for wearing face coverings.
  • There are no physical distancing or barrier requirements regardless of employee vaccination status, with the following exceptions:
    • Employers must evaluate whether it is necessary to implement physical distancing and barriers during an outbreak (3 or more cases in an exposed group of employees)
    • Employers must implement physical distancing and barriers during a major outbreak (20 or more cases in an exposed group of employees)
  • No physical distancing requirements whatsoever in the employer-provided housing and transportation regulations.
  • Where all employees are vaccinated in employer-provided housing and transportation, employers are exempt from those regulations. 
  • Employers must evaluate ventilation systems to maximize outdoor air filtration, increase filtration efficiency, and evaluate the use of additional air cleaning systems.

CAL/OSHA WHAT DID NOT CHANGE

Employer requirements for the following have not changed:

  • An effective written COVID-19 Prevention Program.
  • Effective training and instruction to employees on the employer’s prevention plan and their rights under the ETS.
  • Notification to public health departments of outbreaks.
  • Notification to employees of exposure and close contacts.
  • Offer testing after potential exposures.
  • Responding to COVID-19 cases and outbreaks.
  • Quarantine and exclusion pay requirements.
  • Basic prevention requirements for employer-provided housing and transportation.

Barriers (CA):

  • Nothing in the revised ETS prevents employers from implementing additional protective measures than are required, including the use of physical distancing and barriers.
  • Employers are under an ongoing requirement to assess workplace hazards and implement controls to prevent transmission of disease. There may be circumstances in which employers determine that physical distancing is necessary in their workplace.

EMPLOYER RESPIRATOR OBLIGATIONS (CA)

Q:  What is an employer’s obligation to provide respirators?

A:  An employer must provide respirators in two scenarios: (1) to any unvaccinated employee who works with others indoors or in a vehicle and who requests one and (2) where there is a major outbreak, to any employees in the exposed group for voluntary use. The respirator must be the right size, and the employee must receive basic instruction on how to get a good “seal,” or fit.

Q:  What does it mean to “provide respirators upon request”?

A:  An employer must be able to provide the respirator upon request. Initially, an employer may either stock respirators and offer them to employees or may poll workers to determine which employees wish to be provided a respirator before obtaining them. However, once an employer has established that it has employees who wish to wear respirators, it should have enough on hand of the correct size and type to fulfill reasonably foreseeable requests upon demand. If an employee prefers to select and purchase their own respirator, an employer may permit this alternative, as long as the employer reimburses the employee in a timely manner.

In a major outbreak, respirators must be offered to employees regardless of vaccination status and without waiting for a request from the employee. The employer must offer respirators immediately upon determining a major outbreak is underway.

An employer is under a continuing obligation to provide respirators to eligible unvaccinated employees at any time they communicate to the employer their desire to wear one.

Q: How soon does a respirator need to be provided after an employee requests it?

A: After initial implementation as described above, employers should provide requested respirators to unvaccinated employees as soon as possible.

Q: What if more employees request respirators than the employer anticipates and the employer runs out of respirators? Will Cal/OSHA cite the employer?

A: Cal/OSHA will not cite employers who make a good faith estimate and effort to provide respirators as soon as possible to employees that request them. If an employer runs out of respirators, they should order more respirators immediately. Cal/OSHA lists some but not all vendors that sell N95 respirators in large quantities (vendors able to fulfill orders of more than 100,000 units) at https://www.dir.ca.gov/dosh/wildfire/List-of-N95-Vendors.pdf. There are many vendors who have N95s available in smaller quantities.

Q:  Why is Cal/OSHA requiring respirators be offered to unvaccinated persons? Is this different from CDC and federal OSHA guidance?

A:  Under CDC and federal OSHA guidance, unvaccinated persons are required to wear face coverings and physically distance indoors. Cal/OSHA is requiring voluntary respirators since California is phasing out physical distancing; a well-fitting respirator reduces the risk of infection better than physical distancing alone and respirators are readily available. The ETS provides this as alternative protection for unvaccinated employees.

Q:  How often must an employer provide an employee with a new respirator?

A:  For voluntary use, respirator replacement varies with use and environment. Filtering facepiece respirators are disposable respirators that cannot be cleaned or disinfected. They must be replaced if they get damaged, deformed, dirty, or difficult to breathe through. A best practice is to replace filtering facepiece respirators at the beginning of each shift. Employers should follow the manufacturer’s instructions. CDC recommends replacing a disposable filtering facepiece respirator, such as an N95, after it has been taken on and off five times. Filtering facepiece respirators may not fit correctly after repeated use.

FACE COVERING REQUIREMENTS (CA)

Q:  Who has to wear face coverings?

A:  Face coverings are required indoors and in vehicles for unvaccinated employees. Employees in certain indoor settings must wear a face covering regardless of vaccination status, if required by CDPH order.

Though face coverings are not required outdoors, employers must communicate to workers that face coverings are recommended for unvaccinated persons outdoors where six feet of physical distancing cannot be maintained. Employers must provide face coverings to unvaccinated persons and make them available to vaccinated persons upon request. Last but not the least, customers may demand that the dealership employees wear a mask while moving their cars on the lot.  Employees will have to wear a mask then as well.

Q:  Are there exceptions to wearing face coverings indoors?

A:  Yes. The most common exceptions for unvaccinated persons are:

  • When alone in a room or vehicle
  • When eating and drinking
  • When an accommodation is required
  • When job duties make a face covering infeasible or create a hazard

Q:  Are workers protected from retaliation if they choose to wear a face covering, even if not required to do so?

A:  Yes. Employers cannot retaliate against workers for wearing face coverings, including when the worker is wearing a face covering voluntarily.

Training memo on the Usage of N95 Disposable Facepiece Respirators, CDC Guidance on Putting Disposable Respirators On & Off is being sent to all CSI Clients via separate email and is available on the eLearn Training Portal.

VACCINE DOCUMENTATION (CA)

Q:  Is documentation required for a fully vaccinated employee to work without a face covering indoors?

A:  Yes. Vaccination status must be documented. Use this Vaccine Status Questionnaire. The revised ETS does not specify a particular method. The employer must record the vaccination status for any employee not wearing a face covering indoors and this record must be kept confidential. Acceptable options include:

  • Employees provide proof of vaccination (vaccine card, image of vaccine card or health care document showing vaccination status) and employer maintains a copy.
  • Employees provide proof of vaccination and the employer maintains a record of the employees who presented proof, but not the vaccine record itself.
  • Employees self-attest to vaccination status and employer maintains a record of who self-attests.

Nothing in the revised ETS prevents an employer from requiring all employees to wear a face covering instead of having a documentation process.

Q. What if the employee declines to state their vaccination status?

A:  Under the ETS, an employer is not obligated to require employees to submit proof of being fully vaccinated. Absent such a requirement, an employee has the right to decline to state if they are vaccinated or not. In that case, the employer must treat the employee as unvaccinated and must not take disciplinary or discriminatory action against the employee.

Disclaimer: The contents of this newsletter are merely for informational purposes only and are not to be considered as professional advice. Information from CDC, Fed-OSHA and Cal/OSHA 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 Used Oil Recycling Program

Just imagine this as someone taking your empty soda cans to the recycling center for money. Now imagine your used oil, which is being taken away for recycling, has a refund associated with it. All you have to do is sign up as a California Used Oil Recycling Center and then we at CSI file this claim for you as part of our service. The money is 16 cents per gallon of used oil or about $3000 per year (based on 18,000 gallons of used oil). All you have to do is deposit the check the state sends you every quarter!

Frequently Asked Questions and answers are available on the state website,  https://www.calrecycle.ca.gov/UsedOil/Generators/

For a full list of responsibilities, see the CCC program home page, which summarizes and links to the Operator’s Guide

Frequently Asked Questions

What forms do I need to complete to get certified?

Celly Services will complete all forms that you need to get certified. https://www.calrecycle.ca.gov/usedoil/forms

What if the oil looks contaminated?

You can decline the acceptance of contaminated used motor oil or other waste given to you. Instructions are listed here:

 https://www.calrecycle.ca.gov/UsedOil/CertCenters/#Contaminated

Ask them to take it to a facility as provided by the state.  https://www.calrecycle.ca.gov/UsedOil/Handling/Contaminated/https://www.calrecycle.ca.gov/usedoil/handling/contaminated/procedures

Do I need to keep any special/extra paperwork as part of the program?

No. Your used oil pickup receipts are obtained by us from your used oil hauler.

What is the maximum amount of oil that a person can bring?

You can set a limit where you may not accept more than 5 gallons from a person.

How does this affect my image as a new car dealer?

The fear that unsightly homeless in pajamas will show up with a gallon of used oil in your driveway is unfounded. No dealership in the program (CSI client) has ever seen them in the drive with oil.


What paperwork needs to be posted?

The Certificate of a Used Oil Recycling Center (8.5 x 11 sheet of paper) needs to be posted. Also, a Used Oil Recycling Center sign (provided by the state at no cost) needs to be posted in your driveway where customers can see as they enter your facility.


Do I need to pay the public?

Offer the public 40 cents per gallon of used oil. No paperwork is needed.


Is there a long-term contract with the state?

No, you can get off the program with a simple letter to the state.


What if my oil gets contaminated?

You may keep a 16-gallon drum separately for storage of used oil from the public and keep suspected oil in that drum. If taking oil from the public contaminates your oil, the state will reimburse you for incremental costs for disposal due to the contamination, presuming the source of contamination was public oil (up to a maximum of $5,000 per year). Signs are available, from the state at no cost, to remind both employees and customers not to mix anything with used oil or pour contaminated used oil into storage tanks.


How do I get the gallons of new Oil + ATF purchased per quarter needed for the claim?

Contact your bulk oil supplier for the number.

Additional resources: Certified Collection Center Operators Guide – https://www2.calrecycle.ca.gov/Publications/Details/1523 and SB 546 Lowenthal eff. January 1, 2010.
If you need further details or wish to have the copy of the application, please contact sam@cellyservices.com.

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

OSHA Top Citations for 2020

FED-OSHA TOP 10 citations issued for 2020 are as follows:



1. Fall Protection:  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: 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. Respiratory Protection: 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.
4. Scaffolding: Primarily applicable to the construction industry.
5. Ladders: Limit ladder use to trained and experienced staff only. Secure ladders with a chain to prevent usage by untrained staff.
6. Lockout/Tagout: 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.
7. Powered Industrial Trucks (Forklifts): 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: This moved up a notch from the 2017 number 9 spot. Dealerships must protect employees working on 2nd floor of parts while loading/unloading parts at the mezzanine edge.

9. Eye & Face Protection: Essentially reinforce your Person protective Equipment (PPE) policy and ensure all your employee wear eye and face protection, as necessary.

10. Machine Guarding: 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.

COMPLETE OSHA TRAINING ON THE WEB AT YOUR OWN PERIL

OSHA has stated repeatedly and consistently in its training-related interpretation letters that online or computer-based training is acceptable as part of an overall training program that includes hands-on, site-specific information and work practices where it is needed to meet workplace safety goals.  Many online courses may not be legitimate.  In many instances, the training company clearly states that the training does not meet any local, state, or federal standards.  The awakening happens when OSHA audits the workplace and finds the employer short on hands-on, site-specific information and work practices.

We discuss the hand-on element of some of the hands-on training requirements as follows:

1. Fall Protection:  Employees must have hands-on training on using fall protection equipment such as harnesses.  Also, the lanyards which automatically limit free fall distance are to be marked according to the actual edge.  In summary, the training is hands-on and site-specific.

2. Forklift Training:  Many employers are under the false assumption that the online training is sufficient for employees operating the forklift.  Completing merely online training and allowing one to operate a forklift is akin to driving an automobile after passing a written test.  We all know that hands-on proficiency is to be shown before an actual driver’s license is granted.  Some trainers in fine print state that hands-on training is necessary and some do not mention at all. An experienced trainer must provide training on the operation of the actual hoist and evaluate the employee on proficiency prior to providing an operator certification.

3. Lockout/Tagout:  A written program and employee training is mandatory along with the hands-on portion of lockout.  An effective Lockout program requires that the employee must be able to show to the certifier that he possesses the tools and has procedural knowledge to effectively lockout the equipment, i.e., a faulty hoist.

4. Respiratory Protection:  The employee must be fit tested for the specific respirator to be worn by the employee.  Respirator selection must be done by the employer based on the hazard exposed.  The employee should then be given training on the respirator that must be worn during the work shift.  The SDS for the chemical being used must be utilized in the selection process.

OSHA PENALTIES ARE UP AGAIN

Type of ViolationPenalty
Generalup to $13,653 per violation
Serious$975 – $13,653 per violation
Failure to Abate$13,653 per day beyond abatement date
Posting Requirementsup to $13,653 per violation
Willful or Repeated$9,753 – $136,532 per violation

Note:  The penalties are now automatically adjusted for inflation on an annual basis.

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

FOR YOUR EYES ONLY

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

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

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

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

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

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

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

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

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

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

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

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

Other Important Items: 

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

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

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

California Proposition 65: Signs and Details

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

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

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

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

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

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

What Are Other Highlights of the New Warnings System?

The new warning regulation also:

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

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

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

Will Businesses Be Required to Provide the New Warnings?

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

What Circumstances Will Require Warnings in Languages Other Than English?

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

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

What Are the Warning Responsibilities for Manufacturers and Retailers?

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

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

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

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

Foot Protection Requirements

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

 

WHAT DO THE CALIFORNIA REGULATIONS SAY:

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

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

 

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

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

WHAT DO THE FEDERAL REGULATIONS SAY: 

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

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

 

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

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

 

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

 

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

 

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

 

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

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

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

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

2-1-21 TO 4-30-21

LOG 300, 300A & 301 REQUIRED FOR AUTO DEALERS

 

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

 

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

 

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

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

 

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

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

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

·        OSHA Form 301 – Injury & Illness Incident Report

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

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

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

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

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

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

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

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

 

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

·     Any fatality.

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

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

 

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

·     All work-related fatalities

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

·     All work-related amputations

·     All work-related losses of an eye

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

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

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

 

Questions Asked During Reporting:

1.  Time and date of accident/event

2.  Employer’s name, address and telephone number

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

4.  Address of accident/event site

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

6.  Name and address of injured employee(s)

7.  Nature of injuries

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

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

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

 

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

 

 

 

 

 

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